Conditions of the Obligations of the Underwriters. The respective obligations of the several Underwriters to purchase and pay for the Securities will be subject to the accuracy of the representations and warranties on the part of the Province herein, to the accuracy of the statements of the representatives of the Province made pursuant to the provisions hereof, to the performance by the Province of its obligations hereunder and with regard to the Securities and to the following additional conditions precedent: a) Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Province or the Representatives, shall be contemplated by the SEC; and each Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act, shall have been filed with the SEC under the Securities Act; and the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this Agreement. b) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any material adverse change in the financial, economic or political condition of the Province from that set forth in the Registration Statement, the Time of Sale Information and the Final Prospectus; and the Underwriters shall have received, on the Closing Date, a certificate dated the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth in the first clause of this Section 9(b). c) The Underwriters shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Province, dated the Closing Date, to the effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated the Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion, to the effect that: (i) The Securities are exempted securities under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of the Province in this Agreement are true and correct, that the Province has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the SEC. i) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province shall have furnished to the Underwriters and to counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. k) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The Province will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.

Appears in 3 contracts

Samples: Fiscal Agency Agreement (Province of British Columbia), Fiscal Agency Agreement (Province of British Columbia), Fiscal Agency Agreement (Province of British Columbia)

Conditions of the Obligations of the Underwriters. The ~~respective~~ several obligations of the ~~several~~ Underwriters to purchase and pay for the Offered Securities ~~will be~~ as provided herein on the Closing Date are subject to the ~~accuracy~~ satisfaction or waiver, as determined by the Representative in its sole discretion, of the ~~representations and warranties~~ following conditions precedent on ~~the part of the Province herein,~~ or prior to the ~~accuracy of the statements of the representatives of the Province made pursuant~~ Closing Date: (a) Subsequent to the ~~provisions hereof, to the performance by the Province~~ execution and delivery of ~~its obligations hereunder~~ this Agreement and ~~with regard to the Securities and to the following additional conditions precedent: a) Prior~~ prior to the Closing Date, there shall not have occurred: (i) any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded Holdings or the Company or any of the securities of Holdings, the Company or any of their respective subsidiaries or in the rating outlook for Holdings or the Company by any “nationally recognized statistical rating organization,” as such term is defined in Section 3(a)(62) under the Exchange Act; and (ii) any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or results of operations of Holdings and its subsidiaries, taken as a whole, from that set forth in the General Disclosure Package as of the date of this Agreement that, in the judgment of the Representative, is material and adverse and that makes it, in the judgment of the Representative, impracticable or inadvisable to proceed with the offer, sale or delivery of the Offered Securities on the terms and in the manner contemplated in the General Disclosure Package or the Final Prospectus. (b) The representations and warranties of the Company and the Guarantors contained in this Agreement shall be true and correct on and as of the Applicable Time and on and as of the Closing Date as if made on and as of the Closing Date; the statements of the Company and the Guarantors’ officers made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Company and the Guarantors shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date. (c) The Underwriters shall have received on the Closing Date certificates, dated the Closing Date, signed by the President, Senior Vice President or any Vice President and a principal financial or accounting officer of each of the Company and the Guarantors to the effect set forth in Sections 7(a)(i) and 7(a)(ii), and further to the effect that, to the best of their knowledge and belief, the representations and warranties of the Company and the Guarantors contained in this Agreement were true and correct as of the Applicable Time and true and correct as of the Closing Date; that the Company and the Guarantors have complied with all of the agreements and satisfied all of the conditions on their part to be performed or satisfied hereunder on or before the Closing Date; and that no stop order suspending the effectiveness of the Registration ~~Statement~~Statement or of any part thereof shall have been issued and no proceedings for that purpose have been instituted or, ~~as amended from time~~ to ~~time~~their knowledge, are contemplated by the Commission. (d) The Final Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 5(a) hereof. No stop order suspending the effectiveness of the Registration Statement or of any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Province~~ Company or ~~the Representatives~~any Underwriter, shall be contemplated by the SEC; and each Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act, shall have been filed with the SEC under the Securities Act; and the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this AgreementCommission. b) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any material adverse change in the financial, economic or political condition of the Province from that set forth in the Registration Statement, the Time of Sale Information and the Final Prospectus; and the Underwriters shall have received, on the Closing Date, a certificate dated the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth in the first clause of this Section 9(b). c(e) The Underwriters shall have received ~~an opinion of~~ from (i) Sxxxxxxx & Cxxxxxxx LLP, counsel for the ~~Attorney General of~~ Company and the ~~Province~~Guarantors, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Provincetheir opinion, dated the Closing Date, to the effect ~~that under the laws of British Columbia~~ set forth in Annex I hereto, and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canadaletter, dated the Closing Date, as to the ~~matters specified~~ effect set forth in ~~subdivisions~~ Annex II hereto, and (iii) ~~through (vii) of paragraph (c) of this Section 9~~Jxxx Xxxxx, ~~subject~~ General Counsel to ~~such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such~~ Holdings, her opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, ~~subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion,~~ to the effect ~~that: (i) The Securities are exempted securities under~~ set forth in Annex III hereto. Such opinions and letter shall be rendered to the ~~Trust Indenture Act of 1939, as amended (~~Underwriters at the ~~“Trust Indenture Act”), and no qualification of an indenture in respect~~ request of the ~~Securities under the Trust Indenture Act is required for the issuance, sale~~ Company and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to shall so state therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received ~~an opinion of Linklaters~~ from Cravath, Swaine & Mxxxx LLP, ~~United Kingdom~~ counsel for the ~~Province~~Underwriters, such opinion or opinions, dated the Closing Date, ~~subject~~ with respect to such ~~qualifications~~ matters as the Representative may require, and ~~based~~ the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such ~~assumptions as are customary~~ matters. (g) On the date hereof, the Underwriters shall have received from Ernst & Young LLP, the independent registered public accounting firm for Holdings, a “comfort letter” dated the date hereof addressed to the Underwriters, in form and substance satisfactory to the Representative, covering certain financial information in the ~~United Kingdom in respect of~~ General Disclosure Package and other customary matters. In addition, on the Closing Date, the Underwriters shall have received from such ~~opinion,~~ accountant a “bring-down comfort letter” dated the Closing Date addressed to the ~~effect that~~ Underwriters, in form and substance satisfactory to the ~~statements~~ Representative, in the ~~Time~~ form of ~~Sale Information~~the “comfort letter” delivered on the date hereof, except that (i) it shall cover the financial information in the Final Prospectus and any amendment or supplement thereto and (ii) procedures shall be brought down to a date no more than three (3) days prior to the Closing Date. (h) The Company, the Guarantors and the Trustee shall have executed and delivered the Indenture, in form and substance reasonably satisfactory to the Underwriters, and ~~Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to~~ the ~~extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The~~ Underwriters shall have received an ~~opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated~~ executed copy thereof. (i) On or before the Closing Date, ~~as to~~ the ~~matters specified in subdivisions (i),~~ Underwriters and ~~(iv) (but only as of~~ counsel for the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received ~~a certificate~~ such information, documents, letters and opinions as they may reasonably require for the purposes of enabling them to pass upon the issuance and sale of the ~~Minister~~ Offered Securities as contemplated herein, or in order to evidence the accuracy of ~~Finance~~ any of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and ~~warranties~~ warranties, or the satisfaction of any of the ~~Province~~ conditions or agreements, herein contained. If any condition specified in this ~~Agreement are true~~ Section 7 is not satisfied when and ~~correct, that the Province has complied with all agreements and satisfied all conditions on its part~~ as required to be ~~performed or satisfied~~ satisfied, this Agreement may be terminated by the Representative by notice to the Company at any time on or prior to the Closing Date, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the SEC. i) The purchase and sale of the Securities in accordance with the provisions hereof which termination shall ~~not~~ be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province shall have furnished to the Underwriters and to counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. k) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The Province will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without ~~any~~ liability on the part of any ~~Underwriter to the Province or of the Province~~ party to any ~~Underwriter~~party, except ~~as provided in Section 6~~that Sections 5(h), ~~Section 10~~ 8, 9 and ~~Section 13 hereof. Notice of~~ 12 hereof shall at all times be effective and shall survive such ~~cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement~~termination.

Appears in 3 contracts

Samples: Underwriting Agreement (United Rentals North America Inc), Underwriting Agreement (United Rentals North America Inc), Underwriting Agreement (United Rentals North America Inc)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the several Underwriters to purchase and pay for the ~~Securities~~ Shares will be subject to the accuracy of the representations and warranties on the part of the ~~Province~~ Company, Arconic and each Selling Stockholder herein, to the accuracy of the statements of ~~the representatives of the Province~~ Company, Arconic and each Selling Stockholder’s officers made pursuant to the provisions hereof, to the performance by the ~~Province~~ Company, Arconic and each Selling Stockholder of its obligations hereunder ~~and with regard to the Securities~~ and to the following additional conditions precedent: (a) ~~Prior~~ The Representatives shall have received a letter, dated as of the date of this Agreement, of PricewaterhouseCoopers LLP, in form and substance satisfactory to the Representatives, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements of the Company and its subsidiaries included or incorporated by reference in the Registration Statement. (b) The Representatives shall have received a certificate, dated the date of this Agreement and on the Closing Date, no in form and substance satisfactory to the Representatives, of the chief financial or accounting officer of the Company with respect to certain financial data contained in each of the Time of Sale Information and the Prospectus. (c) The Prospectus and each Issuer Free Writing Prospectus (if required by Rule 433 under the Act) shall have been filed with the Commission in accordance with the Rules and Regulations and Section 6(a) of this Agreement. No stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement or of any parts thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Act shall have been instituted or, to the knowledge of the ~~Province~~ Company or ~~the Representatives~~any Underwriter, shall be contemplated by the SEC; and each Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act, shall have been filed with the SEC under the Securities Act; and the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this AgreementCommission. b(d) Subsequent to the earlier of (A) the Time of Sale and (B) the execution of this ~~Agreement and prior to the Closing Date~~Agreement, there shall not have occurred (i) any ~~material adverse change~~ change, or any development or event involving a prospective change, in or affecting particularly the business or properties of the Company or its subsidiaries which, in the ~~financial, economic or political condition~~ judgment of a majority in interest of the ~~Province~~ Underwriters, including any Representative, materially impairs the investment quality of the Shares, (ii) any downgrading in the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange 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), (iii) any suspension or limitation of trading in securities generally on the NYSE, or the setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Company on such 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 a majority in interest of the Underwriters, including any Representative, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Shares. (e) The Representatives shall have received an opinion, dated the Closing Date, from ~~that set forth~~ Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, counsel for the Company, with respect to such matters and in such form as is reasonably satisfactory to the Representatives. (f) The Representatives shall have received an opinion, dated the Closing Date, from Cravath, Swaine & Xxxxx LLP, counsel for the Selling Stockholders, with respect to such matters and in such form as is reasonably satisfactory to the Representatives. (g) The Representatives shall have received from Cravath, Swaine & Xxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the incorporation of the Company, the validity of the Shares, the Registration Statement, the Time of Sale ~~Information~~ Information, the Prospectus and other related matters as they may require, and the ~~Final Prospectus; and the Underwriters~~ Company shall have ~~received, on~~ furnished to such counsel such documents as they request for the ~~Closing Date, a certificate dated the Closing Date and signed by the Minister~~ purpose of ~~Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory~~ enabling them to ~~the Representatives to the effect set forth in the first clause of this Section 9(b)~~pass upon such matters. c(h) The ~~Underwriters~~ Representatives shall have received ~~an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province,~~ a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Provincecertificate, dated the Closing Date, to the effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the ~~Province, except as rights to indemnity~~ Chief Executive Officer or any Vice-President and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official a principal financial or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated the Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another accounting officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion, to the effect that: (i) The Securities are exempted securities under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, Company in which such ~~Minister, Deputy Minister or other officer, as the case may be~~officers, to the best of ~~his or her~~ their knowledge after reasonable investigation, shall state that the representations and warranties of the ~~Province~~ Company in this Agreement are true and correct, that the ~~Province~~ Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, that no stop order suspending the effectiveness of the Registration Statement or of any parts thereof has been issued and no proceedings for that purpose or pursuant to Section 8A of the Act have been instituted or are contemplated by the ~~SEC~~Commission and that, 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 the Company and its subsidiaries considered in the aggregate, except as set forth in or contemplated by the Time of Sale Information and the Prospectus. (i) The ~~purchase and sale~~ Representatives shall have received a certificate, dated the Closing Date, of the ~~Securities~~ Chief Executive Officer or any Vice-President and a principal financial or accounting officer of Arconic in ~~accordance with the provisions hereof shall not be prohibited by any statute~~which such officers, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province shall have furnished to the ~~Underwriters~~ best of their knowledge after reasonable investigation, shall state that the representations and ~~to counsel for~~ warranties of the ~~Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. k) Subsequent to the execution of~~ Arconic in this Agreement are true and correct, that Arconic 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. (j) The Representatives shall have received a letter, ~~there~~ dated the Closing Date, of PricewaterhouseCoopers LLP, in form and substance satisfactory to the Underwriters, which reconfirms the matters set forth in their letter delivered pursuant to subsection (a) of this Section and covers any additional financial information included in the Prospectus (which is not covered by their letter delivered pursuant to subsection (a) of this Section). (k) The Debt Exchange (as defined in the Debt Transaction Agreement) shall ~~not~~ have occurred ~~any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch~~ in accordance with ~~negative implications, in~~ the ~~ratings accorded the debt securities~~ terms of the ~~Province~~ Debt Transaction Agreement and without giving effect to any wavier of a material condition or any material amendment not consented to by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The ~~Province~~ Company will furnish the ~~Underwriters~~ Representatives with such conformed copies of such opinions, certificates, letters and documents ~~as the Representatives~~ they reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.

Appears in 3 contracts

Samples: Debt Transaction Agreement (Arconic Inc.), Underwriting Agreement (Alcoa Corp), Underwriting Agreement (Arconic Inc.)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the several Underwriters to purchase and pay for the Securities will be subject to the accuracy of the representations and warranties by or on ~~the part~~ behalf of the ~~Province~~ Company herein~~, to the accuracy of the statements of the representatives of the Province made pursuant to the provisions hereof~~, to the performance by the ~~Province~~ Company of its obligations hereunder ~~and with regard to the Securities~~ and to the following additional conditions precedent: (a) ~~Prior~~ At or prior to the execution of the Terms Agreement and on the Closing Date, the Representatives shall have received a letter, dated the date of delivery thereof and any later date on which Option Securities are purchased if specified in a Terms Agreement, of the Independent Registered Public Accounting Firm, addressed to the Underwriters and the Board of Directors of the Company, with respect to the financial statements and certain financial information contained or referred to in the Registration Statement, Pricing Disclosure Package and the Prospectus, as applicable. Such letter shall be in form and substance reasonably satisfactory to the Representatives. (b) The Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 4(a) of this Agreement; the final term sheet contemplated by Section 4(b) of this Agreement (if required pursuant to such section), and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement or of any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Province~~ Company or ~~the Representatives~~any Underwriter, shall be contemplated by the ~~SEC~~Commission; and ~~each~~ no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing ~~Prospectus, to the extent required by Rule 433 under the Securities Act, shall have been filed with the SEC under the Securities Act; and the Final~~ Prospectus shall have been ~~filed with~~ initiated or threatened by the ~~SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this Agreement~~Commission. b(c) Subsequent to the execution of ~~this Agreement and prior to~~ the ~~Closing Date~~Terms Agreement, there shall not have occurred (i) any ~~material adverse~~ change, or any development that would reasonably be expected to result in a change, in or affecting the business, financial condition, results of operations or stockholder’s equity of the Company and its subsidiaries, taken as a whole, which, in the judgment of the Representatives, materially impairs the investment quality of the Securities; (ii) any downgrading, or placement on any watch list for possible downgrading, in the rating of the Company’s debt securities by any of Standard & Poor’s Corporation or Xxxxx’x Investors Services, Inc.; (iii) any suspension 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 Company on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by Federal or New York authorities; or (v)(A) any outbreak or escalation of major hostilities or acts of terrorism in which the United States is involved, any declaration of war by the United States Congress or (B) any other substantial national or international calamity or emergency, or any substantial change in political, financial or economic conditions or currency exchange rates or exchange controls if the ~~financial~~effect of any such event in clause (A) or (B) of this sentence, ~~economic or political condition~~ in the judgment of the ~~Province from that set forth in~~ Representatives, makes it impractical or inadvisable to market the ~~Registration Statement,~~ Securities or proceed with completion of the ~~Time~~ sale of ~~Sale Information~~ and payment for the ~~Final Prospectus; and the Underwriters~~ Securities. (d) The Representatives shall have ~~received~~received an opinion, on dated the Closing Date, ~~a certificate dated~~ from the counsel for the Company specified in the Terms Agreement, which counsel shall be either the General Counsel of the Company or such other counsel for the Company reasonably acceptable to the Representatives, and if Option Securities are purchased at any date after the Closing Date as specified in a Terms Agreement, additional opinions from such counsel, addressed to the Underwriters and ~~signed by~~ dated such later date, confirming that the ~~Minister of Finance~~ statements expressed as of the ~~Province, the Deputy Minister~~ Closing Date in such opinions remain valid as of ~~Finance of the Province or another officer of the Ministry of Finance~~ such later date; such opinions shall be in form and substance reasonably satisfactory to the ~~Representatives~~ Underwriters, substantially to the effect set forth in ~~the first clause of this Section 9(b)~~Schedule C to such Terms Agreement. c(e) The ~~Underwriters~~ Representatives shall have received an from counsel for the Underwriters specified in the Terms Agreement, such opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or ~~another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Province~~opinions, dated the Closing Date, with respect to the ~~effect that under~~ incorporation of the ~~laws~~ Company, the validity of ~~British Columbia~~ the Securities, the Registration Statement, the Prospectus and ~~Canada~~ other related matters as they may reasonably require, and ~~subject~~ the Company shall have furnished to such ~~qualifications and based on~~ counsel such ~~assumptions~~ documents as ~~are customary in British Columbia in respect~~ they request for the purpose of ~~an opinion of this type: (i) The Province has full power and authority~~ enabling them to ~~execute and deliver this Agreement and to issue and sell the Securities~~pass upon such matters. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iiif) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters Representatives shall have received ~~an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada~~a certificate, dated the Closing ~~Date, as to the matters~~ Date and on any later date on which Option Securities are purchased if specified in ~~subdivisions (i) through (vii) of paragraph (c) of this Section 9~~a Terms Agreement, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the ~~Minister of Finance~~ Chairman of the ~~Province~~Board, the ~~Deputy Minister of Finance~~ Vice Chairman of the ~~Province~~ Board, the Chief Executive Officer, the President or ~~another~~ any Vice President and a principal financial or accounting officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion, to the effect that: (i) The Securities are exempted securities under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, Company in which such ~~Minister, Deputy Minister or other officer, as the case may be~~officers, to the best of ~~his or her~~ their knowledge after reasonable investigation, shall state that the representations and warranties of the ~~Province~~ Company in this Agreement are true and correct, that the ~~Province~~ Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, that 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 the Company’s knowledge, are threatened by the Commission and that, 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 ~~are~~ results of operations of the Company and its subsidiaries except as set forth in or contemplated by the ~~SEC~~Prospectus or as described in such certificate. i(g) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province Company shall have ~~furnished to the Underwriters and to counsel for the Underwriters~~ satisfied such ~~further certificates and documents~~ additional conditions, if any, as the Representatives and such counsel reasonably request. k) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, are specified in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representativesa Terms Agreement. The ~~Province~~ Company will furnish the ~~Underwriters~~ Representatives with such conformed copies of such opinions, certificates, letters and documents as ~~the Representatives~~ they reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.

Appears in 3 contracts

Samples: Underwriting Agreement (Unisys Corp), Underwriting Agreement (Unisys Corp), Underwriting Agreement (Unisys Corp)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the ~~several~~ Underwriters to purchase the Firm Securities and ~~pay for~~ the ~~Securities will~~ Optional Securities, as the case may be, shall be subject to the accuracy of the representations and warranties on the part of the ~~Province herein~~Company contained herein as of the Execution Time, the Closing Date and any settlement date pursuant to Section 4 hereof, to the accuracy of the statements of the ~~representatives of the Province~~ Company made in any certificates pursuant to the provisions hereof, to the performance by the ~~Province~~ Company of its obligations hereunder and ~~with regard to the Securities and~~ to the following additional ~~conditions precedent~~conditions: (a) ~~Prior to~~ The Prospectus, and any supplement thereto, have been filed in the ~~Closing Date,~~ manner and within the time period required by Rule 424(b); and no stop order suspending the effectiveness of the Registration ~~Statement, as amended from time~~ Statement or any notice objecting to ~~time,~~ its use shall have been issued and no proceedings for that purpose or under Section 8A of the Act shall have been instituted oror threatened. (b) The Company shall have requested and caused Kxxxxxxx & Exxxx LLP, counsel for the Company, to have furnished to the ~~knowledge~~ Representative its opinions dated the Closing Date and any settlement date, as applicable, and addressed to the Representative, in a form reasonably acceptable to the Representative. (c) The Representative shall have received from Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date and any settlement date, as applicable, and addressed to the Representative, with respect to the issuance and sale of the ~~Province or the Representatives~~Offered Securities, shall be contemplated by the SEC; and each Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act, shall have been filed with the SEC under the Securities Act; and the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this Agreement. b) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any material adverse change in the financial, economic or political condition of the Province from that set forth in the Registration Statement, the ~~Time of Sale Information~~ Statutory Prospectus, the Prospectus (together with any supplement thereto) and other related matters as the Representative may reasonably require, and the ~~Final Prospectus;~~ Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (d) The Company shall have furnished to the Representative a certificate of the Company, signed by its Chief Executive Officer and the ~~Underwriters shall have received, on the Closing Date, a certificate dated the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province~~ principal financial or ~~another~~ accounting officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth in the first clause of this Section 9(b). c) The Underwriters shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the ProvinceCompany, dated the Closing Date, and any settlement date, as applicable, to the effect that ~~under~~ the ~~laws~~ signers of ~~British Columbia~~ such certificate have carefully examined the Registration Statement and ~~Canada~~ each Preliminary Prospectus, the Prospectus and ~~subject to such qualifications~~ any amendment or supplement thereto, and ~~based on such assumptions~~ each “road show” as ~~are customary~~ defined in ~~British Columbia~~ Rule 433(h) of the Act used in ~~respect of an opinion of this type: (i) The Province has full power~~ connection with the Offering, and ~~authority to execute and deliver~~ this Agreement and to issue and sell the Securities. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated the Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion, to the effect that: (i) The Securities are exempted securities under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of the ~~Province~~ Company in this Agreement are true and ~~correct, that~~ correct on and as of such date with the ~~Province~~ same effect as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to ~~the Closing Date, that~~ such date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose or under Section 8A of the Act have been instituted or, to the Company’s knowledge, threatened; and (iii) since the date of the most recent financial statements included in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effect, except as set forth in or ~~are~~ contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). (e) [Reserved]. (f) The Company shall have requested and caused Withum to have furnished to the Representative, at the Execution Time and at the Closing Date and any settlement date, as applicable, letters, dated respectively as of the Execution Time and as of the Closing Date and any settlement date, as applicable, in form and substance satisfactory to the Representative. (g) Subsequent to the Execution Time or, if earlier, the dates as of which information is given in the Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto), there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (g) of this Section 7 or (ii) any change, or any development involving a prospective change, in or affecting the earnings, business, management, properties, assets, rights, operations, condition (financial or otherwise) or prospects of the Company, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Representative, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Offered Securities as contemplated by the ~~SEC~~Registration Statement (exclusive of any amendment thereof), the Statutory Prospectus and the Prospectus (exclusive of any supplement thereto). i(h) ~~The purchase~~ Prior to the Closing Date, and ~~sale of the Securities in accordance with the provisions hereof shall not be prohibited by~~ any ~~statute~~settlement date, ~~order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada~~as applicable, the ~~United States of America, the Province or the State of New York. j) The Province~~ Company shall have furnished to the ~~Underwriters and to counsel for the Underwriters~~ Representative such further information, certificates and documents as the ~~Representatives and such counsel~~ Representative may reasonably request. (i) FINRA shall not have raised any objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereby. (j) The Offered Securities shall be duly listed subject to notice of issuance on Nasdaq, satisfactory evidence of which shall have been provided to the Representative. (k) ~~Subsequent~~ On the Effective Date, the Company shall have delivered to the ~~execution~~ Representative executed copies of ~~this~~ the Trust Agreement, the Warrant Agreement, the Alignment Share Purchase Agreement, the Warrant Subscription Agreement, the Insider Letter, the Registration Rights Agreement and the Administrative Services Agreement. (l) At least one Business Day prior to the Closing Date or a settlement date, as applicable, the Company shall have caused proceeds from the sale of the Private Placement Warrants to be deposited into the Trust Account such that the cumulative amount deposited into the Trust Account as of such Closing Date or such settlement date, as applicable, shall equal the product of the number of SAILSM Securities issued in the Offering as of such Closing Date or such settlement date, as applicable, and the public offering price per SAILSM Security as set forth on the cover of the Prospectus. (m) No order preventing or suspending the sale of the SAILSM Securities in any jurisdiction designated by the Representative pursuant to Section 6(ii) hereof shall have been issued as of the Closing Date, ~~there~~ and no proceedings for that purpose shall ~~not have occurred any downgrading, nor shall any notice~~ have been ~~given of any intended~~ instituted or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The Province will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably requestshall have been threatened. If any of the ~~above~~ conditions specified in this Section 7 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably ~~contemplated herein~~satisfactory in form and substance to the Representative and counsel for the Underwriters, this Agreement and all obligations of the Underwriters hereunder may be ~~terminated with respect to Securities~~ canceled at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereofRepresentative. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 7 shall be delivered electronically, or if by mail, at the office of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, counsel for the Underwriters, at Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP, 500 Xxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxxx Xxxx, Xxxxxxxxxx, 00000, Attention: Gxxxx Xxxx and Mxxxxxx Xxxxxxxx, unless otherwise indicated herein, on the Closing Date and any settlement date, as ~~soon as practicable in accordance with Section 14 of this Agreement~~applicable.

Appears in 2 contracts

Samples: Underwriting Agreement (Health Assurance Acquisition Corp.), Underwriting Agreement (Health Assurance Acquisition Corp.)

Appears in 2 contracts

Samples: Underwriting Agreement (Compucredit Corp), Underwriting Agreement (Compucredit Corp)

Conditions of the Obligations of the Underwriters. The respective obligations of the several Underwriters to purchase and pay for the Securities will be subject to the accuracy of the representations and warranties on the part of the Province herein, to the accuracy of the statements of the representatives of the Province made pursuant to the provisions hereof, to the performance by the Province of its obligations hereunder and with regard to the Securities and to the following additional conditions precedent: a) Prior to the Closing Date, no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the Province or the Representatives, shall be contemplated by the SEC; and each Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act, shall have been filed with the SEC under the Securities Act; and the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this Agreement. b) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any material adverse change in the financial, economic or political condition of the Province from that set forth in the Registration Statement, the Time of Sale Information and the Final Prospectus; and the Underwriters shall have received, on the Closing Date, a certificate dated the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth in the first clause of this Section 9(b). c) The Underwriters shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Province, dated the Closing Date, to the effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of ~~Oxxxx~~Osler, ~~Hxxxxx~~ Xxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated the Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, ~~Oxxxx~~Osler, ~~Hxxxxx~~ Xxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as ~~Oxxxx~~Osler, ~~Hxxxxx~~ Xxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of ~~Sxxxxxxx~~ Shearman & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion, to the effect that: (i) The Securities are exempted securities under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, and “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxxx Xxxx & ~~Wxxxxxxx~~ Xxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, ~~Dxxxx~~ Xxxxx Xxxx & ~~Wxxxxxxx~~ Xxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. hg) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of the Province in this Agreement are true and correct, that the Province has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the SEC. ih) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. ji) The Province shall have furnished to the Underwriters and to counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. kj) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The Province will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.

Appears in 2 contracts

Samples: Fiscal Agency Agreement (Province of British Columbia), Fiscal Agency Agreement (Province of British Columbia)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the several Underwriters to purchase and pay for the Offered Securities will be subject to the accuracy of the representations and warranties on the part of the ~~Province~~ Company herein, to the accuracy of the statements of ~~the representatives~~ officers of the ~~Province~~ Company made pursuant to the provisions hereof, to the performance by the ~~Province~~ Company of its obligations hereunder ~~and with regard to the Securities~~ and to the following additional conditions precedent: (a) ~~Prior~~ The Prospectus as amended or supplemented in relation to the ~~Closing Date~~applicable Offered Securities shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing (without reliance on Rule 424(b)(8)) by the Rules and Regulations and in accordance with Section 5(a) hereof; if the Company has elected to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date hereof; no stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement or any part thereof shall have been issued and no ~~proceedings~~ proceeding for that purpose shall have been ~~instituted or,~~ initiated or to the knowledge of the ~~Province or the Representatives, shall be contemplated~~ Company threatened by the ~~SEC~~Commission; and ~~each Issuer Free Writing Prospectus, to~~ all requests for additional information on the ~~extent required by Rule 433 under~~ part of the ~~Securities Act,~~ Commission shall have been filed with the SEC under the Securities Act; and the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this Agreementcomplied with. (b) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any material adverse change in the financial, economic or political condition of the Province from that set forth in the Registration Statement, the Time of Sale Information and the Final Prospectus; and the Underwriters shall have received, on the Closing Date, a certificate dated the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth in the first clause of this Section 9(b). c) The Underwriters shall have received ~~an opinion of~~ from Deloitte & Touche LLP a comfort letter dated the ~~Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province,~~ date hereof and a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Province, bring-down comfort letter dated the Closing Date, in form and content satisfactory to the ~~effect~~ Underwriters and their counsel, acting reasonably, containing statements and information of the type ordinarily included in accountants’ long-form comfort letters to underwriters with respect to the financial statements and other financial information of the Company and its subsidiaries included in the Disclosure Package and the Preliminary Prospectus; provided that ~~under~~ the ~~laws of British Columbia and Canada and subject~~ letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to ~~such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type:~~the Closing Date. (c) Subsequent to the Applicable Time, there shall not have been (i) ~~The Province~~ any change, or any development or event involving a prospective change, in the financial condition, business, properties or results of operations of the Company and its subsidiaries taken as a whole, which, in the judgment of the Representatives, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Securities; (ii) any downgrading in the rating of any debt securities or preferred stock of the Company by any “nationally recognized statistical rating organization” (as such term is defined in Section 3 of the Exchange Act), or any public announcement that any such organization has ~~full power~~ under surveillance or review its rating of any debt securities or preferred stock of the Company (other than an announcement with positive implications of a possible upgrading, and ~~authority~~ no implication of a possible downgrading, of such rating); (iii) any material 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; (iv) any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market, other than at a time when the immediately prior subsection (iii) also applies; (v) any banking moratorium declared by U.S. Federal or New York authorities; (vi) any material disruption in settlements of securities or clearance services in the United States; or (vii) any attack on, or outbreak or escalation of hostilities or act of terrorism involving, the United States, any declaration of war by the United States Congress or any other substantial national or international calamity or emergency if, in the judgment of the Representatives, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to ~~execute~~ proceed with completion of the offering or sale of and ~~deliver this Agreement and to issue and sell~~ payment for the Offered Securities. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an ~~opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada~~opinion, dated the Closing Date, ~~as to the matters specified in subdivisions (i) through (vii)~~ of ~~paragraph (c)~~ Xxxxxxx X. Xxx, Vice President, Chief Corporate Counsel and Corporate Secretary of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the RepresentativesBerkshire Hathaway Energy Company, as appointed counsel for the ~~case may be~~Company, ~~Canadian counsel to~~ substantially in the ~~Province, is in~~ form ~~and substance satisfactory to them and they believe that the Representatives are justified in relying thereon~~of Exhibit A hereto. (e) The Underwriters shall have received ~~the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province~~an opinion, dated the Closing Date, ~~subject~~ of Xxxxxxx Coie LLP, special counsel to ~~such qualifications and based upon such assumptions as are customary~~ the Company, substantially in the ~~United States in respect~~ form of such opinion, to the effect that: (i) The Securities are exempted securities under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the SecuritiesExhibit B hereto. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received ~~an opinion of Linklaters~~ from Xxxxxx & Xxxxxxx LLP, ~~United Kingdom~~ counsel for the ~~Province~~Underwriters, such opinion or opinions, dated the Closing Date, ~~subject~~ in form and substance satisfactory to the Underwriters, and the Company shall have furnished to such ~~qualifications and based~~ counsel such documents as they request for the purpose of enabling them to pass upon such ~~assumptions~~ matters. In rendering such opinion or opinions, Xxxxxx & Xxxxxxx LLP may rely as ~~are customary in the United Kingdom in respect of such opinion,~~ to the ~~effect that~~ incorporation of the ~~statements in~~ Company and all other matters governed by Oregon law upon the ~~Time~~ opinion of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters Xxxxxxx Coie LLP referred to ~~therein, fairly summarize in all material respects the legal matters referred to therein~~above. (g) The Underwriters shall have received ~~an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters~~a certificate, dated the Closing Date, ~~as to the matters specified in subdivisions (i), and (iv) (but only as~~ of the ~~date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications~~ President or any Vice President and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a ~~certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province~~ principal financial or ~~another~~ accounting officer of the ~~Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date,~~ Company in which such ~~Minister, Deputy Minister or other officer, as the case may be~~officers, to the best of ~~his or her~~ their knowledge after reasonable investigation, shall state ~~that~~ that: (i) the representations and warranties of the ~~Province~~ Company in this Agreement are true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect and (ii) that the ~~Province~~ Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and (iii) that, ~~that no stop order suspending~~ subsequent to the ~~effectiveness~~ date of the ~~Registration Statement~~ most recent financial statements in, or incorporated by reference in, the Preliminary Prospectus, there has been ~~issued and~~ no proceedings for that purpose have been instituted or are contemplated by the SEC. i) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province shall have furnished to the Underwriters and to counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. k) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any downgradingmaterial adverse change, nor ~~shall~~ any ~~notice have been given of any intended~~ development or ~~potential downgrading or of any placing on credit watch with negative implications~~event involving a prospective material adverse change, in the ~~ratings accorded the debt securities~~ financial condition, business or results of operations of the ~~Province by any nationally recognized statistical rating agency~~ Company and its subsidiaries taken as a whole except as set forth in the ~~United States. All~~ Disclosure Package and the Prospectus or as described in such ~~opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives~~certificate. The ~~Province~~ Company will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the ~~Representatives~~ Underwriters reasonably request. If The Underwriters may waive compliance with any ~~of the above~~ conditions ~~shall not have been fulfilled as reasonably contemplated herein, this Agreement and all~~ to their obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreementhereunder.

Appears in 2 contracts

Samples: Underwriting Agreement (Pacificorp /Or/), Underwriting Agreement (Pacificorp /Or/)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the several Underwriters to purchase and pay for the Offered Securities will be subject to the accuracy of the representations and warranties on the part of the ~~Province~~ Company herein, to the accuracy of the statements of ~~the representatives~~ officers of the ~~Province~~ Company made pursuant to the provisions hereof, to the performance by the ~~Province~~ Company of its obligations hereunder ~~and with regard to the Securities~~ and to the following additional conditions precedent: (a) ~~Prior~~ The Prospectus as amended or supplemented in relation to the ~~Closing Date~~applicable Offered Securities shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing (without reliance on Rule 424(b)(8)) by the Rules and Regulations and in accordance with Section 5(a) hereof; if the Company has elected to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date hereof; no stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement or any part thereof shall have been issued and no ~~proceedings~~ proceeding for that purpose shall have been ~~instituted or,~~ initiated or to the knowledge of the ~~Province or the Representatives, shall be contemplated~~ Company threatened by the ~~SEC~~Commission; and ~~each Issuer Free Writing Prospectus, to~~ all requests for additional information on the ~~extent required by Rule 433 under~~ part of the ~~Securities Act,~~ Commission shall have been filed with the SEC under the Securities Act; and the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this Agreementcomplied with. (b) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any material adverse change in the financial, economic or political condition of the Province from that set forth in the Registration Statement, the Time of Sale Information and the Final Prospectus; and the Underwriters shall have received, on the Closing Date, a certificate dated the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth in the first clause of this Section 9(b). c) The Underwriters shall have received ~~an opinion of~~ from Deloitte & Touche LLP a comfort letter dated the ~~Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province,~~ date hereof and a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Province, bring-down comfort letter dated the Closing Date, in form and content satisfactory to the ~~effect~~ Underwriters and their counsel, acting reasonably, containing statements and information of the type ordinarily included in accountants’ long-form comfort letters to underwriters with respect to the financial statements and other financial information of the Company and its subsidiaries included in the Disclosure Package and the Preliminary Prospectus; provided that ~~under~~ the ~~laws of British Columbia and Canada and subject~~ letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to ~~such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type:~~the Closing Date. (c) Subsequent to the Applicable Time, there shall not have been (i) ~~The Province~~ any change, or any development or event involving a prospective change, in the financial condition, business, properties or results of operations of the Company and its subsidiaries taken as a whole, which, in the judgment of the Representatives, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Securities; (ii) any downgrading in the rating of any debt securities or preferred stock of the Company by any “nationally recognized statistical rating organization” (as such term is defined in Section 3 of the Exchange Act), or any public announcement that any such organization has ~~full power~~ under surveillance or review its rating of any debt securities or preferred stock of the Company (other than an announcement with positive implications of a possible upgrading, and ~~authority~~ no implication of a possible downgrading, of such rating); (iii) any material 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; (iv) any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (v) any banking moratorium declared by U.S. Federal or New York authorities; (vi) any material disruption in settlements of securities or clearance services in the United States; or (vii) any attack on, or outbreak or escalation of hostilities or act of terrorism involving, the United States, any declaration of war by the United States Congress or any other substantial national or international calamity or emergency if, in the judgment of the Representatives, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to ~~execute~~ proceed with completion of the offering or sale of and ~~deliver this Agreement and to issue and sell~~ payment for the Offered Securities. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an ~~opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada~~opinion, dated the Closing Date, ~~as to the matters specified in subdivisions (i) through (vii)~~ of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives[•], as appointed counsel for the ~~case may be~~Company, ~~Canadian counsel to~~ substantially in the ~~Province, is in~~ form ~~and substance satisfactory to them and they believe that the Representatives are justified in relying thereon~~of Exhibit A hereto. (e) The Underwriters shall have received ~~the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province~~an opinion, dated the Closing Date, ~~subject~~ of Xxxxxxx Coie LLP, special counsel to ~~such qualifications and based upon such assumptions as are customary~~ the Company, substantially in the ~~United States in respect~~ form of such opinion, to the effect that: (i) The Securities are exempted securities under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the SecuritiesExhibit B hereto. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received ~~an opinion of Linklaters LLP~~from [•], ~~United Kingdom~~ counsel for the ~~Province~~Underwriters, such opinion or opinions, dated the Closing Date, ~~subject~~ in form and substance satisfactory to the Underwriters, and the Company shall have furnished to such ~~qualifications and based~~ counsel such documents as they request for the purpose of enabling them to pass upon such ~~assumptions~~ matters. In rendering such opinion or opinions, [•] may rely as ~~are customary in the United Kingdom in respect of such opinion,~~ to the ~~effect that~~ incorporation of the ~~statements in~~ Company and all other matters governed by Oregon law upon the ~~Time~~ opinion of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters Xxxxxxx Coie LLP referred to ~~therein, fairly summarize in all material respects the legal matters referred to therein~~above. (g) The Underwriters shall have received ~~an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters~~a certificate, dated the Closing Date, ~~as to the matters specified in subdivisions (i), and (iv) (but only as~~ of the ~~date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications~~ President or any Vice President and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a ~~certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province~~ principal financial or ~~another~~ accounting officer of the ~~Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date,~~ Company in which such ~~Minister, Deputy Minister or other officer, as the case may be~~officers, to the best of ~~his or her~~ their knowledge after reasonable investigation, shall state ~~that~~ that: (i) the representations and warranties of the ~~Province~~ Company in this Agreement are true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect and (ii) that the ~~Province~~ Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and (iii) that, ~~that no stop order suspending~~ subsequent to the ~~effectiveness~~ date of the ~~Registration Statement~~ most recent financial statements in, or incorporated by reference in, the Preliminary Prospectus, there has been ~~issued and~~ no proceedings for that purpose have been instituted or are contemplated by the SEC. i) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province shall have furnished to the Underwriters and to counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. k) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any downgradingmaterial adverse change, nor ~~shall~~ any ~~notice have been given of any intended~~ development or ~~potential downgrading or of any placing on credit watch with negative implications~~event involving a prospective material adverse change, in the ~~ratings accorded the debt securities~~ financial condition, business or results of operations of the ~~Province by any nationally recognized statistical rating agency~~ Company and its subsidiaries taken as a whole except as set forth in the ~~United States. All~~ Disclosure Package and the Prospectus or as described in such ~~opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives~~certificate. The ~~Province~~ Company will (i) furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the ~~Representatives~~ Underwriters reasonably request. If The Underwriters may waive compliance with any ~~of the above~~ conditions ~~shall not have been fulfilled as reasonably contemplated herein, this Agreement and all~~ to their obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreementhereunder.

Appears in 1 contract

Samples: Underwriting Agreement (Pacificorp /Or/)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of ~~the several Underwriters to purchase and pay for the Securities will be~~ each Underwriter are subject to the ~~accuracy~~ following conditions: (a) Notification that the Registration Statement has become effective shall be received by the Representatives not later than 5:00 p.m., New York City time, on the date of this Agreement or at such later date and time as shall be consented to in writing by the Representatives and all filings required by Rule 424 and Rule 430A of the ~~representations~~ Rules and warranties on the part of the Province herein, to the accuracy of the statements of the representatives of the Province made pursuant to the provisions hereof, to the performance by the Province of its obligations hereunder and with regard to the Securities and to the following additional conditions precedent:Regulations shall have been made. a(i) ~~Prior to the Closing Date, no~~ No stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement shall have been issued and no proceedings for that purpose shall ~~have been instituted or~~be pending or threatened by the Commission, to (ii) no order suspending the ~~knowledge~~ effectiveness of the ~~Province~~ Registration Statement or the ~~Representatives,~~ qualification or registration of the Shares under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by the ~~SEC; and each Issuer Free Writing Prospectus~~Commission or the authorities of such jurisdiction, to (iii) any request for additional information on the ~~extent required by Rule 433 under~~ part of the ~~Securities Act,~~ staff of the Commission or any such authorities shall have been ~~filed~~ complied with to the ~~SEC under~~ satisfaction of the ~~Securities Act;~~ staff of the Commission or such authorities and (iv) after the ~~Final~~ date hereof no amendment or supplement to the Registration Statement or the Prospectus shall have been filed ~~with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this Agreement. b) Subsequent~~ unless a copy thereof was first submitted to the ~~execution of this Agreement~~ Representatives and ~~prior to~~ the Representatives did not object thereto in good faith, and the Representatives shall have received certificates, dated the Closing Date, there shall not have occurred any material adverse change in the financial, economic or political condition of the Province from that set forth in the Registration Statement, the Time of Sale Information Date and the ~~Final Prospectus; and the Underwriters shall have received, on the Closing Date, a certificate dated the~~ Option Closing Date and signed by the ~~Minister of Finance~~ Chief Executive Officer or the Chairman of the ~~Province~~Board of Directors of the Company and the Chief Financial Officer of the Company (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii), (iii) and (iv). (c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement or Prospectus and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Representatives any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price. (d) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its respective officers or directors in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceeding an unfavorable ruling, decision or finding would materially and adversely affect the Company or its business, properties, business prospects, condition (financial or otherwise) or results of operations. (e) Each of the representations and warranties of the Company and the Selling Shareholders contained herein shall be true and correct in all material respects at the Closing Date and, with respect to the Option Shares, at the Option Closing Date, as if made at the Closing Date and, with respect to the Option Shares, at the Option Closing Date, and all covenants and agreements herein contained to be performed on the part of the Company and the Selling Shareholders and all conditions herein contained to be fulfilled or complied with by the Company and the Selling Shareholders at or prior to the Closing Date Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with. (f) The Representatives shall have received an opinion, dated the Closing Date and, with respect to the Option Shares, the ~~Deputy Minister of Finance of~~ Option Closing Date, and satisfactory in form and substance to counsel for the ~~Province or another officer of the Ministry of Finance satisfactory~~ Underwriters, from Ice, Xxxxxx, Xxxxxxx & Xxxx, counsel to the ~~Representatives~~ Company and the Selling Shareholders, to the effect set forth in ~~the first clause of this Section 9(b).~~Exhibit C. c(g) The ~~Underwriters~~ Representatives shall have received an ~~opinion of~~ opinion, dated the ~~Attorney General of~~ Closing Date and the ~~Province~~Option Closing Date, from Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, counsel to the Underwriters, with respect to the Registration Statement, the ~~Deputy Attorney General~~ Prospectus and this Agreement, which opinion shall be satisfactory in all respects to the Representatives. (h) Concurrently with the execution and delivery of this Agreement, the ~~Province~~Accountants shall have furnished to the Representatives a letter, ~~Assistant Deputy Attorney General~~dated the date of its delivery, ~~Legal Services Branch, Ministry of Attorney General of~~ addressed to the ~~Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province~~ Representatives and in form and substance satisfactory to the Representatives, ~~as Canadian counsel~~ confirming that they are independent accountants with respect to the ~~Province~~Company as required by the Act and the Rules and Regulations and with respect to the financial and other statistical and numerical information contained in the Registration Statement. At the Closing Date and, as to the Option Shares, the Option Closing Date, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than five days prior to the Closing Date and the Option Closing Date which would require any change in their letter dated the date hereof if it were required to be dated and delivered at the Closing Date and the Option Closing Date, to the effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type:. (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance Concurrently with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated at the Closing ~~Date~~Date and, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the ProvinceOption Shares, the ~~Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory~~ Option Closing Date, there shall be furnished to the Representatives ~~as to factual matters. The opinion shall state in effect that on~~ an accurate certificate, dated the ~~basis~~ date of ~~an independent examination of such records~~its delivery, ~~certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion~~ signed by each of the ~~Attorney General~~Chief Executive Officer and the Chief Financial Officer, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to ~~them and they believe that~~ the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinionRepresentatives, to the effect that: (i) ~~The Securities are exempted securities under~~ Each signer of such certificate has carefully examined the ~~Trust Indenture Act of 1939, as amended (~~Registration Statement and the ~~“Trust Indenture Act”),~~ Prospectus and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) ~~the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment),~~ as of the date of ~~this Agreement~~such certificate, ~~contained an untrue statement of a~~ such documents are true and correct in all material ~~fact or omitted~~ respects and do not omit to state a material fact required to be stated therein or necessary in order to make the statements therein not ~~misleading;~~ untrue or misleading and (B) in the ~~Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as~~ case of the ~~Time~~ certificate delivered at the Closing Date and the Option Closing Date, since the Effective Date no event has occurred as a result of ~~Sale, contained an untrue statement of a material fact~~ which it is necessary to amend or ~~omitted to state a material fact necessary~~ supplement the Prospectus in order to make the statements ~~therein,~~ therein not untrue or misleading in ~~the light~~ any material respect. ii) Each of the ~~circumstances under which they were~~ representations and warranties of the Company contained in this Agreement were, when originally made, ~~not misleading;~~ and are, at the time such certificate is dated, true and correct in all material respects. iii) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the date of such certificate has been duly, timely and fully complied with. (Cj) Concurrently with the ~~Final Prospectus (other than~~ execution and delivery of this Agreement and at the ~~financial statements and other financial data contained therein or omitted therefrom~~Closing Date and, as to ~~which such counsel has not been requested to comment)~~the Option Shares, ~~as of its date or~~ the Option Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not there shall have been ~~requested to comment) appear on their face to be appropriately responsive in all material respects~~ furnished to the ~~requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received~~ Representatives an ~~opinion of Linklaters LLP, United Kingdom counsel for the Province~~accurate certificate, dated the ~~Closing Date~~date of its delivery, ~~subject~~ signed by the Committee on behalf of each of the Selling Shareholders, in form and substance satisfactory to ~~such qualifications and based upon such assumptions as are customary in~~ the ~~United Kingdom in respect of such opinion~~Representatives, to the effect that the ~~statements in~~ representations and warranties of each of the ~~Time of Sale Information,~~ Selling Shareholders contained herein are true and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize correct in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), on and ~~(iv) (but only~~ as of the date of ~~this Agreement~~ such certificate as ~~to clause (A))~~ if made on and as of ~~paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in~~ the ~~United States in respect~~ date of such ~~opinions. In considering such opinion~~certificate, ~~Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian~~ and ~~Canadian law and procedure. h) The Underwriters shall have received a certificate~~ each of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations covenants and ~~warranties of the Province in this Agreement are true and correct, that the Province has complied with all agreements and satisfied all~~ conditions ~~on its part~~ required herein to be performed or ~~satisfied at~~ complied with by the Selling Shareholders on or prior to the date of such certificate has been duly, timely and fully performed or complied with. (k) On or prior to the Closing Date, ~~that no~~ the Representatives shall have received the executed agreements referred to in Section 7(n). (l) The Shares shall be qualified for sale in such states as the Representatives may reasonably request, and each such qualification shall be in effect and not subject to any stop order ~~suspending~~ or other proceeding on the ~~effectiveness of~~ Closing Date and the ~~Registration Statement has been issued and no proceedings for that purpose~~ Option Closing Date. (m) Prior to the Closing Date, the Shares shall have been ~~instituted or are contemplated~~ duly authorized for listing by the ~~SEC~~Nasdaq National Market upon official notice of issuance. i(n) The ~~purchase~~ Company and ~~sale of~~ the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province Selling Shareholders shall have furnished to the ~~Underwriters and~~ Representatives such certificates, in addition to ~~counsel for the Underwriters such further certificates and documents~~ those specifically mentioned herein, as the Representatives ~~and such counsel~~ may have reasonably ~~request. k) Subsequent~~ requested as to the ~~execution of this Agreement~~ accuracy and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The Province will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or completeness at ~~any time prior to,~~ the Closing Date and the Option Closing Date of any statement in the Registration Statement or the Prospectus, as to the accuracy at the Closing Date and the Option Closing Date of the representations and warranties of the Company and the Selling Shareholders herein, as to the performance by the ~~Representatives on behalf~~ Company and the Selling Shareholders of its and their respective obligations hereunder, or as to the fulfillment of the ~~Underwriters, without any liability on the part of any Underwriter~~ conditions concurrent and precedent to the ~~Province or~~ obligations hereunder of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this AgreementRepresentatives.

Appears in 1 contract

Samples: Underwriting Agreement (Made2manage Systems Inc)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the several Underwriters to purchase and pay for the Securities will be subject to the accuracy of the representations and warranties on the part of the ~~Province~~ Company herein, to the accuracy of the statements of ~~the representatives of the Province~~ Company officers made pursuant to the provisions hereof, to the performance by the ~~Province~~ Company of its obligations hereunder ~~and with regard to the Securities~~ and to the following additional conditions precedent: (a) ~~Prior~~ The Representatives shall have received a letter, dated as of the date of this Agreement, of PricewaterhouseCoopers LLP, in form and substance satisfactory to the ~~Closing Date~~Representatives, no containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements of the Company and its subsidiaries included or incorporated by reference in the Registration Statement. (b) The Prospectus and each Issuer Free Writing Prospectus (if required by Rule 433 under the Act) shall have been filed with the Commission in accordance with the Rules and Regulations and Section 4(a) of this Agreement. No stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement or of any parts thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Act shall have been instituted or, to the knowledge of the ~~Province~~ Company or ~~the Representatives~~any Underwriter, shall be contemplated by the SEC; and each Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act, shall have been filed with the SEC under the Securities Act; and the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this AgreementCommission. b(c) Subsequent to the earlier of (A) the Time of Sale and (B) the execution of this ~~Agreement and prior to the Closing Date~~Agreement, there shall not have occurred (i) any ~~material adverse change~~ change, or any development or event involving a prospective change, in or affecting particularly the business or properties of the Company, or its subsidiaries which, in the ~~financial, economic or political condition~~ judgment of a majority in interest of the ~~Province~~ Underwriters, including any Representatives, materially impairs the investment quality of the Securities or the Conversion Shares; (ii) any downgrading in the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange 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); (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or the setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Company on such 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 a majority in interest of the Underwriters, including any Representatives, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Securities. (d) The Representatives shall have received an opinion or opinions, dated the Closing Date, of the General Counsel, an Assistant General Counsel or a Counsel of the Company substantially in the form of Annex I(a) hereto. (e) The Representatives shall have received an opinion, dated the Closing Date, of K&L Gates LLP, special counsel for the Company, substantially in the form of Annex I(b) hereto. (f) The Representatives shall have received an opinion, dated the Closing Date, from ~~that set forth~~ Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, special counsel for the Company, substantially in the form of Annex I(c) hereto. (g) The Representatives shall have received from Cravath, Swaine & Xxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the incorporation of the Company, the validity of the Securities and the Conversion Shares, the Registration Statement, the Time of Sale ~~Information~~ Information, the Prospectus and other related matters as they may require, and the ~~Final Prospectus; and the Underwriters~~ Company shall have ~~received~~furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. In rendering such opinion, on Cravath, Swaine & Xxxxx LLP may rely as to the ~~Closing Date, a certificate dated the Closing Date and signed by the Minister of Finance~~ incorporation of the ~~Province~~Company and all other matters governed by Pennsylvania law, upon the ~~Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory~~ opinions referred to ~~the Representatives to the effect set forth~~ in ~~the first clause~~ subsections (d) and (e) of this ~~Section 9(b)~~Section. c(h) The ~~Underwriters~~ Representatives shall have received ~~an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province,~~ a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Provincecertificate, dated the Closing Date, to the effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations Chairman of the ~~Province in accordance with their respective terms~~ Board, President or any Vice-President and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official a principal financial or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated the Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another accounting officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion, to the effect that: (i) The Securities are exempted securities under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, Company in which such ~~Minister, Deputy Minister or other officer, as the case may be~~officers, to the best of ~~his or her~~ their knowledge after reasonable investigation, shall state that the representations and warranties of the ~~Province~~ Company in this Agreement are true and correct, that the ~~Province~~ Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, that no stop order suspending the effectiveness of the Registration Statement or of any parts thereof has been issued and no proceedings for that purpose or pursuant to Section 8A of the Act have been instituted or are contemplated by the ~~SEC~~Commission and that, 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 the Company and its subsidiaries considered in the aggregate, except as set forth in or contemplated by the Time of Sale Information and the Prospectus. (i) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province Representatives shall have furnished to the Underwriters and to counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. k) Subsequent to the execution of this Agreement and prior to received a letter, dated the Closing Date, ~~there~~ of PricewaterhouseCoopers LLP, in form and substance satisfactory to the Underwriters, which reconfirms the matters set forth in their letter delivered pursuant to subsection (a) of this Section and covers any additional financial information included in the Prospectus (which is not covered by their letter delivered pursuant to subsection (a) of this Section). (j) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives and certain officers and directors of the Company listed on Schedule IV hereto relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to the Representatives on or before the date of this Agreement, shall ~~not~~ be in full force and effect on the Closing Date. (k) The Company shall have ~~occurred any downgrading~~filed a listing application with the New York Stock Exchange for listing the Depositary Shares and for reserving a number of Conversion Shares equal to the Maximum Number of Conversion Shares, ~~nor~~ subject to notice of issuance, and satisfactory evidence of such actions shall ~~any notice~~ have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory provided to the Representatives. The ~~Province~~ Company will furnish the ~~Underwriters~~ Representatives with such conformed copies of such opinions, certificates, letters and documents ~~as the Representatives~~ they reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.

Appears in 1 contract

Samples: Underwriting Agreement (Alcoa Inc)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of ~~the several Underwriters to purchase and pay for the Securities will be~~ each Underwriter hereunder are subject to the ~~accuracy~~ following conditions: (a) Notification that the Registration Statement has become effective shall be received by the Representative not later than 5:00 p.m., New York City time, on the date of this Agreement or at such later date and time as shall be consented to in writing by the Representative and all filings required by Rule 424 and Rule 430A of the ~~representations~~ Rules and ~~warranties on~~ Regulations shall have been made, and the ~~part~~ Shares shall be qualified or registered for sale in such jurisdictions as the Representative shall request, except where the failure to qualify or register Shares would not, in the reasonable judgment of the ~~Province herein~~Representative, have a material adverse effect on its ability to market the accuracy of the statements of the representatives of the Province made pursuant to the provisions hereof, to the performance by the Province of its obligations hereunder and with regard to the Securities and to the following additional conditions precedent:Shares. a(i) ~~Prior to the Closing Date, no~~ No stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement shall have been issued and no proceedings for that purpose shall ~~have been instituted or, to the knowledge of the Province~~ be pending or ~~the Representatives, shall be contemplated~~ threatened by the ~~SEC; and each Issuer Free Writing Prospectus~~Commission, to the extent required by Rule 433 under the Securities Act, shall have been filed with the SEC under the Securities Act; and the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this Agreement. b) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any material adverse change in the financial, economic or political condition of the Province from that set forth in the Registration Statement, the Time of Sale Information and the Final Prospectus; and the Underwriters shall have received, on the Closing Date, a certificate dated the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth in the first clause of this Section 9(b). c) The Underwriters shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Province, dated the Closing Date, to the effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated the Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion, to the effect that: (i) The Securities are exempted securities under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of the Province in this Agreement are true and correct, that the Province has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date, that no stop order suspending the effectiveness of the Registration Statement ~~has been issued~~ or the qualification or registration of the Shares under the securities or Blue Sky laws of any jurisdiction shall be in effect, and no ~~proceedings~~ proceeding for ~~that~~ such purpose ~~have been instituted~~ shall be pending before or ~~are~~ threatened or contemplated by the ~~SEC~~authorities of any such jurisdiction, except where the failure to qualify or register Shares in such jurisdiction would not, in the reasonable judgment of the Representative, have a material adverse effect on its ability to market the Shares, (iii) any request for additional information on the part of the staff of the Commission or any such authorities shall have been complied with to the satisfaction of the staff of the Commission or such authorities and (iv) after the date hereof no amendment or supplement to the Registration Statement or the Prospectus shall have been filed unless a copy thereof was first submitted to the Representative and the Representative does not object thereto in good faith, and the Representative shall have received certificates, dated the Closing Date and the Option Closing Date and signed by the Chief Executive Officer of the Company and the Chief Financial Officer of the Company (who may, as to proceedings threatened, rely upon the best of their information and belief) to the effect of clauses (i), (ii) and (iii). (c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province shall have furnished to the Underwriters and to counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. k) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have ~~occurred any downgrading~~been a material adverse change in the general affairs, ~~nor shall any notice have been given~~ business, business prospects, properties, management, condition (financial or other) or results of ~~any intended~~ operations of the Company, whether or ~~potential downgrading or~~ not arising from transactions in the ordinary course of ~~any placing on credit watch with negative implications~~business, in ~~the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency~~ each case other than as set forth in the ~~United States. All such opinions, certificates, letters~~ Registration Statement and ~~documents will be in compliance with~~ the ~~provisions hereof only if they are reasonably satisfactory to~~ Prospectus and (ii) the Representatives. The Province will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. If any of the above conditions Company shall not have ~~been fulfilled as reasonably contemplated herein~~sustained any material loss or interference with its business or properties from fire, ~~this Agreement~~ explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental order or decree, that is not set forth in the Registration Statement and ~~all obligations~~ the Prospectus, if in the reasonable judgment of the Representative any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters ~~hereunder may~~ at the public offering price. (d) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceeding an unfavorable ruling, decision or finding would materially and adversely affect the business, business prospects, properties, management, condition (financial or other) or results of operations of the Company. (e) Each of the representations and warranties of the Company contained herein shall be ~~terminated~~ true and correct in all material respects at the Closing Date and, with respect to ~~Securities at~~the Option Shares, or at ~~any time prior to~~the Option Closing Date, ~~the Closing Date by the Representatives on behalf of the Underwriters, without any liability~~ and all covenants and agreements contained herein to be performed on the part of ~~any Underwriter~~ the Company and all conditions contained herein to be fulfilled or complied with by the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.Company at or

Appears in 1 contract

Samples: Underwriting Agreement (Cowlitz Bancorporation)

Conditions of the Obligations of the Underwriters. The ~~respective obligations~~ obligation of the ~~several~~ Underwriters to purchase and pay for the ~~Securities~~ Notes will be subject to the accuracy of the representations and warranties on by the ~~part of~~ Transferor and the ~~Province~~ Bank herein, to the accuracy of the statements of ~~the representatives~~ officers of the ~~Province~~ Transferor and the Bank made pursuant to the provisions hereof, to the performance by the ~~Province~~ Transferor and the Bank of ~~its~~ their respective obligations hereunder ~~and with regard to the Securities~~ and to the following additional conditions precedent: (a) ~~Prior~~ On or prior to the [Closing Date] [the date of this Agreement], the Representatives shall have received an agreed upon procedures letter of [ ], dated on or prior to the date of the Prospectus Supplement, confirming that they are independent public accountants within the meaning of the Act and the applicable published Rules and Regulations thereunder, which letter shall be substantially in the form heretofore agreed to and otherwise in form and in substance satisfactory to the Representatives and their counsel. (b) The Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 5(a) of this Agreement; and, prior to the Closing Date, no stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Province~~ Transferor or the Representatives, shall be contemplated by the SEC; and each Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act, shall have been filed with the SEC under the Securities Act; and the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this AgreementCommission. b(c) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any material adverse change in the financial, economic or political condition of the Province from that set forth in the Registration Statement, the Time of Sale Information and the Final Prospectus; and the Underwriters shall have received, on the Closing Date, a certificate dated the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth in the first clause of this Section 9(b). c) The Underwriters shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Province, dated the Closing Date, to the effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement ~~and~~ none of the ~~Fiscal Agency Agreement~~following shall have occurred: (i) trading in securities generally on the New York Stock Exchange, the ~~issuance~~ American Stock Exchange or the over-the-counter market shall have been suspended, limited or minimum prices shall have been established on either of such exchanges or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction or any suspension of trading of any securities of the ~~Securities~~ Certificate Trust, the Issuer, the Bank, the Transferor or First National of Nebraska, Inc. or any of their Affiliates on any exchange or in the over-the-counter market; (ii) a banking moratorium shall have been declared by Federal or state authorities; (iii) any downgrading in the rating of any debt securities of the Certificate Trust, the Issuer, the Bank, the Transferor, First National of Nebraska, Inc. or any of their Affiliates 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 such debt securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iv) the ~~performance~~ United States shall have become engaged in hostilities, there shall have been an escalation of hostilities involving the United States or there shall have been a declaration of a national emergency or war by the ~~Province~~ United States or any other substantial national or international calamity or emergency which, in the judgment of ~~its obligations hereunder~~ the Representatives, makes it impractical or inadvisable to proceed with the completion and ~~thereunder have been obtained~~ sale of and ~~are~~ payment for the Notes; and (v) any material adverse change in ~~full force~~ the financial markets for asset-backed securities in the United States which, in the Representatives' judgment, makes it impractical to proceed with completion of the sale of and ~~effect~~payment for the Notes. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The ~~Underwriters~~ Representatives shall have received an opinion ~~of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada~~or opinions, dated the Closing Date, ~~as to the matters specified in subdivisions (i) through (vii)~~ of ~~paragraph (c) of this Section 9~~Xxxxx Xxxx LLP, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian special counsel to the ~~Province~~Transferor and the Bank, is satisfactory in form and substance ~~satisfactory~~ to ~~them and they believe that~~ the Representatives ~~are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States~~ and their counsel ~~for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion,~~ to the effect that: (i) The ~~Securities are exempted securities~~ Transferor is a limited liability company in good standing, duly organized and validly existing under the ~~Trust Indenture Act~~ laws of ~~1939~~the State of Nebraska; the Bank is a national banking association in good standing, duly organized and validly existing under the laws of the United States of America; and each of the Transferor and the Bank (each referred to in this subsection (d) as ~~amended (~~a "FNBO Entity") is duly qualified to do business and is in good standing under the ~~“Trust Indenture Act”)~~laws of each jurisdiction which requires such qualification wherein it owns or leases material properties or conducts material business, and ~~no qualification of an indenture~~ has full power and authority to own its properties, to conduct its business as described in ~~respect of~~ the ~~Securities~~ Registration Statement and the Prospectus, to enter into and perform its obligations under the ~~Trust Indenture Act~~ Transaction Documents to which it is ~~required for~~ a party, and to consummate the ~~issuance, sale and delivery of the Securities~~transactions contemplated thereby. (ii) ~~The statements in~~ Each of the ~~Time of Sale Information~~ Transaction Documents and ~~Final Prospectus under “Description of Bonds”~~ this Agreement has been duly authorized, executed and ~~“Description of Debt Securities and Warrants”, insofar as such statements constitute~~ delivered by each FNBO Entity that is a ~~summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein~~party thereto. (iii) ~~The statements~~ Neither the execution and delivery of the Transaction Documents and this Agreement by either FNBO Entity that is party thereto nor the consummation of any of the transactions contemplated therein nor the fulfillment of the terms thereof, conflicts with or violates, results in ~~the Time~~ a material breach of ~~Sale Information~~or constitutes a default under (A) any Requirements of Law applicable to such FNBO Entity, ~~and Final Prospectus under “Description~~ (B) any term or provision of ~~Debt Securities and Warrants — United States Federal Income Taxation”~~any order known to such firm to be currently applicable to such FNBO Entity of any court, regulatory body, administrative agency or governmental body having jurisdiction over such FNBO Entity or (C) any term or provision of any indenture or other agreement or instrument known to such firm to which such FNBO Entity is a party or by which either of them or any of their properties are bound and, as ~~supplemented by “Tax Matters — United States Taxation”~~to FNBO, which has been identified to us as material to the ~~extent that they constitute summaries~~ business or operations of ~~legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein~~FNBO. (iv) ~~Based upon such counsel’s participation~~ Except as otherwise disclosed in ~~conferences with representatives of~~ the ~~Province, counsel for the Province~~ Prospectus (and ~~their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A~~any supplement thereto) or the Registration ~~Statement (other than the financial statements and other financial data contained therein or omitted therefrom~~Statement, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may bethere is no pending or, to the best of ~~his~~ such firm's knowledge, threatened action, suit or ~~her knowledge after reasonable investigation~~proceeding before any court or governmental agency, ~~shall state that~~ authority or body or any arbitrator with respect to the ~~representations and warranties~~ Certificate Trust, the Issuer, the Collateral Certificate, the Notes or any of the ~~Province~~ Transaction Documents or any of the transactions contemplated therein with respect to an FNBO Entity which, in the case of any such action, suit or proceeding if adversely determined, would have a material adverse effect on the Notes, the Collateral Certificate, the Certificate Trust or the Issuer or upon the ability of either FNBO Entity to perform its obligations under the Transaction Documents. (v) Each of the Transaction Documents to which an FNBO Entity is a party constitutes the legal, valid and binding agreement of such Person under the laws of Nebraska, enforceable against each such Person in accordance with its terms, subject to (A) the effect of bankruptcy, insolvency, moratorium, receivership, reorganization, liquidation and other similar laws affecting creditors' rights generally and the rights of creditors of national banking associations (including, without limitation, the determination pursuant to 12 U.S.C.Section 1821(e) of any liability for the disaffirmance or repudiation of any contract), (B) the effect of general principles of equity including (without limitation) concepts of materiality, reasonableness, good faith, fair dealing (regardless of whether considered and applied in a proceeding in equity or at law), and also to the possible unavailability of specific performance or injunctive relief, (C) the unenforceability under certain circumstances of provisions indemnifying a party against liability or requiring contribution from a party for liability where such indemnification or contribution is contrary to public policy and (D) certain remedial provisions of the Indenture may be unenforceable in whole or in part under the UCC, but the inclusion of such provisions does not render the other provisions of the Indenture invalid and notwithstanding that such provisions may be unenforceable in whole or in part, the Indenture Trustee, on behalf of the Noteholders, will be able to enforce the remedies of a secured party under the UCC. (vi) This Agreement constitutes the legal, valid and binding obligation of the Transferor and the Bank under the laws of the State of New York, enforceable against the Transferor and the Bank in accordance with its terms, subject to (A) the effect of bankruptcy, insolvency, moratorium, receivership, reorganization, liquidation and other similar laws affecting creditors' rights generally and the rights of creditors of national banking associations (including, without limitation, the determination pursuant to 12 U.S.C.Section 1821(e) of any liability for the disaffirmance or repudiation of any contract), (B) the effect of general principles of equity including (without limitation) concepts of materiality, reasonableness, good faith, fair dealing (regardless of whether considered and applied in a proceeding in equity or at law), and also to the possible unavailability of specific performance or injunctive relief, and (C) the unenforceability under certain circumstances of provisions indemnifying a party against liability or requiring contribution from a party for liability where such indemnification or contribution is contrary to public policy. (vii) The Notes are in due and proper form and when executed, authenticated and delivered as specified in the Indenture, and when delivered against payment of the consideration specified in this ~~Agreement are true~~ Agreement, they will be validly issued and ~~correct~~outstanding, ~~that~~ will constitute legal, valid and binding obligations of the ~~Province has complied~~ Issuer, enforceable against the Issuer in accordance with ~~all agreements~~ their terms and ~~satisfied all conditions on its part to~~ will be ~~performed or satisfied at or prior~~ entitled to the ~~Closing Date~~benefits of the Indenture, subject to (A) the effect of bankruptcy, insolvency, moratorium, receivership, reorganization, liquidation and other similar laws affecting creditors' rights generally, (B) the effect of general principles of equity including (without limitation) concepts of materiality, reasonableness, good faith, fair dealing (regardless of whether considered and applied in a proceeding in equity or at law), and also to the possible unavailability of specific performance or injunctive relief, (C) the unenforceability under certain circumstances of provisions indemnifying a party against liability or requiring contribution from a party for liability where such indemnification or contribution is contrary to public policy and (D) certain remedial provisions of the Indenture may be unenforceable in whole or in part under the UCC, but the inclusion of such provisions does not render the other provisions of the Indenture invalid and notwithstanding that such provisions may be unenforceable in whole or in part, the Indenture Trustee, on behalf of the Noteholders, will be able to enforce the remedies of a secured party under the UCC. (viii) The Collateral Certificate is in due and proper form, validly issued and outstanding and constitutes the legal, valid and binding obligation of the Certificate Trust, enforceable against the Certificate Trust in accordance with its terms and is entitled to the benefits of the Pooling and Servicing Agreement, subject to (A) the effect of bankruptcy, insolvency, moratorium, receivership, reorganization, liquidation and other similar laws affecting creditors' rights generally, (B) the effect of general principles of equity including (without limitation) concepts of materiality, reasonableness, good faith, fair dealing (regardless of whether considered and applied in a proceeding in equity or at law), and also to the possible unavailability of specific performance or injunctive relief, and (C) the unenforceability under certain circumstances of provisions indemnifying a party against liability or requiring contribution from a party for liability where such indemnification or contribution is contrary to public policy. (ix) The Registration Statement has become effective under the Act, and the Prospectus has been filed with the Commission pursuant to Rule 424(b) thereunder in the manner and within the time period required by Rule 424(b). To the best of our knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened or contemplated by the ~~SEC~~Commission. i(x) The ~~purchase and sale~~ statements in the Base Prospectus under the headings "Risk Factors -- If a conservator or receiver were appointed for First National Bank of Omaha, or if we become a debtor in a bankruptcy case, delays or reductions in payment of your notes could occur," "Material Legal Aspects of the ~~Securities~~ Receivables," "ERISA Considerations" and "Federal Income Tax Consequences" and the statements in ~~accordance with~~ the ~~provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada,~~ Prospectus Supplement under the ~~United States of America, the Province or the State of New York. j) The Province shall have furnished~~ headings "Structural Summary -- Tax Status" and " -- ERISA Considerations" to the ~~Underwriters and to counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. k) Subsequent to the execution~~ extent that they constitute matters of ~~this Agreement and prior to the Closing Date~~law or legal conclusions with respect thereto, ~~there shall not have occurred any downgrading, nor shall any notice~~ have been ~~given of any intended or potential downgrading or of any placing on credit watch with negative implications,~~ reviewed by us and are correct in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The Province will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreementmaterial respects.

Appears in 1 contract

Samples: Underwriting Agreement (First Bankcard Master Credit Card Trust)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of ~~the several Underwriters to purchase and pay for the Securities will be~~ each Underwriter hereunder are subject to the ~~accuracy~~ following conditions: (a) All filings required by Rule 424 and Rule 430A of the ~~representations~~ Rules and ~~warranties~~ Regulations shall have been made. If the Company has elected to rely upon Rule 462(b), the registration statement filed under Rule 462(b) shall have become effective by 10:00 p.m., Washington, D.C. time, on the ~~part~~ date of the Province herein, to the accuracy of the statements of the representatives of the Province made pursuant to the provisions hereof, to the performance by the Province of its obligations hereunder and with regard to the Securities and to the following additional conditions precedent:this Agreement. a(i) ~~Prior to the Closing Date, no~~ No stop order suspending the effectiveness of the Registration ~~Statement~~Statement or preventing or suspending the use of the Base Prospectus, ~~as amended from time to time~~any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall ~~have been instituted or~~be pending or threatened by the Commission, (ii) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Shares under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or to the ~~knowledge of the Province~~ Company’s knowledge, threatened or ~~the Representatives, shall be~~ contemplated by the ~~SEC; and each Issuer Free Writing Prospectus~~Commission or the authorities of any such jurisdiction, to (iii) any request for additional information on the ~~extent required by Rule 433 under~~ part of the ~~Securities Act,~~ staff of the Commission or any such authorities shall have been ~~filed~~ complied with to the ~~SEC under~~ satisfaction of the ~~Securities Act; and~~ staff of the ~~Final~~ Commission or such authorities, (iv) after the date hereof no amendment or supplement to the Registration Statement, the Prospectus or the Pricing Prospectus shall have been filed ~~with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this Agreement. b) Subsequent~~ unless a copy thereof was first submitted to the ~~execution of this Agreement~~ Representative and ~~prior to~~ the Representative does not object thereto in good faith, and (v) the Representative shall have received certificates dated the Closing ~~Date~~Date and, ~~there shall not have occurred any material adverse change in the financial, economic or political condition of the Province from that set forth in the Registration Statement~~if later, the ~~Time of Sale Information and the Final Prospectus; and the Underwriters shall have received, on the Closing Date, a certificate dated the~~ applicable Option Closing Date and signed by the ~~Minister of Finance~~ Chief Executive Officer and the Chief Financial Officer of the ~~Province~~Company (who may, ~~the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory~~ as to ~~the Representatives~~ proceedings threatened, rely upon their information and belief), to the effect ~~set forth~~ of clauses (i), (ii) and (iii) of this paragraph. (c) Since the respective dates as of which information is given in the ~~first clause~~ Registration Statement and the Pricing Prospectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of ~~this Section 9(b)~~operations of the Company or any of its subsidiaries, whether or not arising from transactions in the ordinary course of business, in each case other than as described in or contemplated by the Registration Statement and the Pricing Prospectus, and (ii) neither the Company nor any of its subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not described in the Registration Statement and the Pricing Prospectus, if in the judgment of the Representative any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price. c(d) Since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there shall have been no litigation or other proceeding instituted against the Company, any of its subsidiaries, or any of their officers or directors in their capacities as such, before or by any federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceeding an unfavorable ruling, decision or finding would, in the judgment of the Representative, have a Material Adverse Effect or if, in the judgment of the Representative, any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price. (e) Each of the representations and warranties of the Company contained herein shall be true and correct in all respects (in the case of any representation and warranty containing a materiality or Material Adverse Effect qualification) or in all material respects (in the case of any other representation and warranty) at the Closing Date and, with respect to the Option Shares, at the applicable Option Closing Date, and all covenants and agreements contained herein to be performed on the part of the Company and all conditions contained herein to be fulfilled or complied with by the Company at or prior to the Closing Date and, with respect to the Option Shares, at or prior to the applicable Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respects. (f) The ~~Underwriters~~ Representative shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Provinceopinion, dated the Closing Date and, with respect to the Option Shares, the applicable Option Closing Date, satisfactory in form and substance to the ~~effect that under~~ Representative and counsel for the ~~laws of British Columbia~~ Underwriters from Fenwick & West LLP, counsel to the Company in form and ~~Canada~~ substance previously agreed to between Fenwick & West LLP and ~~subject~~ Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, counsel to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the ~~Securities~~Underwriters. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iiig) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters Representative shall have received an ~~opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada~~opinion, dated the Closing Date or the applicable Option Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, ~~Canadian~~ from Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, counsel to the ~~Province~~Underwriters, is with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be satisfactory in all respects to the Representative. (h) Concurrently with the execution and delivery of this Agreement, the Accountants shall have furnished to the Representative a letter, dated the date of its delivery, addressed to the Representative and in form and substance satisfactory to ~~them~~ the Representative, confirming that they are independent accountants with respect to the Company and ~~they believe that~~ its subsidiaries as required by the ~~Representatives are justified~~ Act and the Exchange Act and the Rules and Regulations and with respect to certain financial and other statistical and numerical information contained or incorporated by reference in ~~relying thereon. e) The Underwriters~~ the Registration Statement, the Prospectus and the General Disclosure Package. At the Closing Date and, as to the Option Shares, the applicable Option Closing Date, the Accountants shall have ~~received~~ furnished to the ~~opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province~~Representative a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date or the applicable Option Closing Date, ~~subject~~ as the case may be, which would require any change in their letter dated the date hereof if it were required to ~~such qualifications~~ be dated and ~~based upon such assumptions~~ delivered at the Closing Date or the applicable Option Closing Date, as ~~are customary~~ the case may be. (i) At the Closing Date and, as to the Option Shares, the applicable Option Closing Date, there shall be furnished to the Representative a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to the ~~United States in respect of such opinion~~Representative, to the effect that: (i) ~~The Securities are exempted securities~~ Each signer of such certificate has carefully examined the Registration Statement, the Prospectus and the General Disclosure Package (including any documents filed under the ~~Trust Indenture~~ Exchange Act ~~of 1939, as amended (~~and deemed to be incorporated by reference into the ~~“Trust Indenture Act”),~~ Pricing Prospectus and ~~no qualification of an indenture in respect of~~ the ~~Securities under the Trust Indenture Act is required for the issuance, sale~~ Prospectus) and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) ~~the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment),~~ as of the date of ~~this Agreement~~such certificate, ~~contained an untrue statement of a~~ such documents are true and correct in all material ~~fact or omitted~~ respects and do not omit to state a material fact required to be stated therein or necessary in order to make the statements therein not ~~misleading;~~ untrue or misleading and (B) in the ~~Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as~~ case of the ~~Time~~ certificate delivered at the Closing Date and the applicable Option Closing Date, since the Effective Date no event has occurred as a result of ~~Sale, contained an untrue statement of a material fact~~ which it is necessary to amend or ~~omitted to state a material fact necessary~~ supplement the Prospectus in order to make the statements ~~therein, in the light of the circumstances under which they were made,~~ therein not untrue or misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f(ii) ~~The Underwriters shall have received an opinion~~ Each of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of the ~~Province~~ Company contained in this Agreement ~~are~~ were, when originally made, and are, at the time such certificate is delivered, true and ~~correct, that~~ correct in all respects (in the ~~Province has complied with~~ case of any representation and warranty containing a materiality or Material Adverse Effect qualification) or in all ~~agreements~~ material respects (in the case of any other representation and ~~satisfied all conditions on its part~~ warranty). (iii) Each of the covenants required to be performed by the Company herein on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be satisfied at or fulfilled on or prior to the date of such certificate has been duly, timely and fully satisfied or fulfilled. (j) On or prior to the Closing Date, ~~that no~~ the Representative shall have received the executed agreements referred to in Section 4(n). (k) The Shares shall be qualified for sale in such jurisdictions as the Representative may reasonably request and each such qualification shall be in effect and not subject to any stop order ~~suspending~~ or other proceeding on the ~~effectiveness of~~ Closing Date or the ~~Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the SEC~~applicable Option Closing Date. i(l) Prior to the Closing Date, the Company shall have filed a notice of listing of additional shares with respect to the Shares with the NCM and the NCM shall not have objected to such listing. (m) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province Company shall have furnished to the ~~Underwriters and~~ Representative such certificates, in addition to ~~counsel for the Underwriters such further certificates and documents~~ those specifically mentioned herein, as the ~~Representatives and such counsel~~ Representative may have reasonably ~~request. k) Subsequent~~ requested as to the ~~execution of this Agreement~~ accuracy and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The Province will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or completeness at ~~any time prior to,~~ the Closing Date and the applicable Option Closing Date of any statement in the Registration Statement, the Prospectus or the General Disclosure Package, as to the accuracy at the Closing Date and the applicable Option Closing Date of the representations and warranties of the Company herein, as to the performance by the ~~Representatives on behalf~~ Company of its obligations hereunder, or as to the fulfillment of the ~~Underwriters, without any liability on the part of any Underwriter~~ conditions concurrent and precedent to the ~~Province or~~ obligations hereunder of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this AgreementRepresentative.

Appears in 1 contract

Samples: Underwriting Agreement (ADESTO TECHNOLOGIES Corp)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the several Underwriters to purchase and pay for the Offered Securities on the Closing Date will be subject to the accuracy of the representations and warranties on the part of the ~~Province herein~~Company herein as of the date hereof and as of the Closing Date, to the accuracy of the statements of ~~the representatives of the Province~~ Company officers made pursuant to the provisions hereof, to the performance by the ~~Province~~ Company of its obligations hereunder ~~and with regard to the Securities~~ and to the following additional conditions precedent: (a) ~~Prior to~~ The Prospectus shall have been filed with the ~~Closing Date, no~~ Commission in accordance with the Rules and Regulations and Section 5(a) of this Agreement. No stop order suspending the effectiveness of ~~the~~ either Registration ~~Statement, as amended from time to time,~~ Statement or of any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Province~~ Company or ~~the Representatives~~any Underwriter, shall be contemplated by the SEC; and each Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act, shall have been filed with the SEC under the Securities Act; and the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this AgreementCommission. (b) Subsequent to the execution and delivery of this ~~Agreement and prior to the Closing Date~~Agreement, there shall not have occurred (i) any ~~material adverse~~ change in the condition (financial or other), business or results of operations of the Company and its subsidiaries taken as a whole which, in the reasonable judgment of a majority in interest of the Underwriters including the Representatives, is 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 Offered Securities; (ii) any downgrading in the rating of any debt securities of the Company 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 Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any change in U.S. or international financial, political or economic ~~or political condition~~ conditions as would, in the judgment of a majority in interest of the ~~Province from that set forth~~ Underwriters including the Representatives, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Securities, whether in the ~~Registration Statement~~primary market or in respect of dealings in the secondary market; (iv) any material 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 Company on any exchange or in the over-the-counter market; (v) any banking moratorium declared by U.S. Federal or New York authorities; (vi) any major disruption of settlements of securities or clearance services in the United States or (vii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of a majority in interest of the Underwriters including the Representatives, the ~~Time~~ effect of ~~Sale Information and the Final Prospectus; and the Underwriters shall have received~~any such attack, ~~on the Closing Date~~outbreak, ~~a certificate dated the Closing Date and signed by the Minister of Finance~~ escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the ~~Province,~~ public offering or the ~~Deputy Minister~~ sale of ~~Finance of~~ and payment for the ~~Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth in the first clause of this Section 9(b)~~Offered Securities. (c) The ~~Underwriters~~ Representatives shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Provinceopinions, dated the Closing Date, of Xxxxxxx X. Xxxxxxxxx, Esq., Executive Vice President and General Counsel of the Company, and Xxxxxxxxx & Xxxxxxx, special counsel to the ~~effect that under~~ Company, substantially in the ~~laws~~ form of ~~British Columbia~~ Exhibits A and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the SecuritiesB hereto, respectively. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The ~~Underwriters~~ Representatives shall have received ~~an opinion of Oxxxx, Hxxxxx & Harcourt~~ from Xxxxx Xxxxxxxxxx LLP, ~~Canadian~~ counsel to for the Underwriters, ~~given in respect of the laws of British Columbia and Canada~~such opinion or opinions, dated the Closing Date, as with respect to the incorporation of the Company, the validity of the Offered Securities, the Registration Statements, the Prospectus and other related matters ~~specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9~~as the Representatives may require, ~~subject~~ and the Company shall have furnished to such ~~qualifications and based on~~ counsel such ~~assumptions~~ documents as ~~are customary in British Columbia in respect~~ they reasonably request for the purpose of ~~an opinion of this type. In rendering~~ enabling them to pass upon such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereon. (e) The ~~Underwriters~~ Representatives shall have received ~~the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province~~a certificate, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion, to the effect that: (i) The Securities are exempted securities under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the ~~Securities under the Trust Indenture Act is required for the issuance, sale~~ President or any Vice President and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the principal financial ~~statements and other financial data contained therein~~ or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another accounting officer of the ~~Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date,~~ Company in which such ~~Minister, Deputy Minister or other officer, as the case may be~~officers, to the best of ~~his or her knowledge after reasonable investigation~~their knowledge, shall state that the representations and warranties of the ~~Province~~ Company in this Agreement are true and correct, that the ~~Province~~ Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to ~~the~~ such Closing Date, that no stop order suspending the effectiveness of ~~the~~ either Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the ~~SEC~~Commission and that, subsequent to the date of the most recent financial statements in the Prospectus, there has been no material adverse change in the condition (financial or other), business or results of operations of the Company and its subsidiaries taken as a whole except as set forth in or contemplated by the Prospectus. i(f) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province shall have furnished to the Underwriters and to counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. k) Subsequent to the execution of this Agreement and prior to On the Closing Date, ~~there~~ the Representatives shall ~~not~~ have ~~occurred any downgrading, nor shall any notice have been given of any intended~~ received from PricewaterhouseCoopers LLP a letter or ~~potential downgrading or of any placing on credit watch with negative implications~~letters dated the Closing Date, in ~~the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters~~ form and ~~documents will be in compliance with the provisions hereof only if they are~~ substance reasonably satisfactory to the Representatives, together with signed or reproduced copies of such letter for each of the other Underwriters, containing statements and information with respect to the financial statements of, and certain financial information relating to the Company contained in the Registration Statements and the Prospectus of the same nature and scope as that included by such firm in letters delivered to underwriters in connection with other recent offerings of securities by the Company. The ~~Province~~ Company will furnish the ~~Underwriters~~ Representatives with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. ~~If any~~ CSFB may in its sole discretion waive on behalf of the ~~above~~ Underwriters compliance with any conditions ~~shall not have been fulfilled as reasonably contemplated herein, this Agreement and all~~ to the obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreementhereunder.

Appears in 1 contract

Samples: Underwriting Agreement (Pepco Holdings Inc)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the several Underwriters to purchase and pay for the Securities will be subject to the accuracy of the representations and warranties on the part of the ~~Province~~ Company herein, to the accuracy of the statements of ~~the representatives of the Province~~ Company officers made pursuant to the provisions hereof, to the performance by the ~~Province~~ Company of its obligations hereunder ~~and with regard to the Securities~~ and to the following additional conditions precedent: (a) ~~Prior~~ The Representatives shall have received a letter, dated as of the date of this Agreement, of PricewaterhouseCoopers LLP, in form and substance satisfactory to the ~~Closing Date~~Representatives, no containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements of the Company and its subsidiaries included or incorporated by reference in the Registration Statement. (b) The Prospectus and each Issuer Free Writing Prospectus (if required by Rule 433 under the Act) shall have been filed with the Commission in accordance with the Rules and Regulations and Section 4(a) of this Agreement. No stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement or of any parts thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Act shall have been instituted or, to the knowledge of the ~~Province~~ Company or ~~the Representatives~~any Underwriter, shall be contemplated by the SEC; and each Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act, shall have been filed with the SEC under the Securities Act; and the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this AgreementCommission. b(c) Subsequent to the earlier of (A) the Time of Sale and (B) the execution of this ~~Agreement and prior to the Closing Date~~Agreement, there shall not have occurred (i) any ~~material adverse change~~ change, or any development or event involving a prospective change, in or affecting particularly the business or properties of the Company, or its subsidiaries which, in the ~~financial, economic or political condition~~ judgment of a majority in interest of the ~~Province~~ Underwriters, including any Representatives, materially impairs the investment quality of the Securities; (ii) any downgrading in the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange 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); (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or the setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Company on such 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 a majority in interest of the Underwriters, including any Representatives, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Securities. (d) The Representatives shall have received an opinion or opinions, dated the Closing Date, of the General Counsel, an Assistant General Counsel or a Counsel of the Company substantially in the form of Annex I(a) hereto. (e) The Representatives shall have received an opinion, dated the Closing Date, of K&L Gates LLP, special counsel for the Company, substantially in the form of Annex I(b) hereto. (f) The Representatives shall have received from ~~that set forth in~~ Cravath, Swaine & Xxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the incorporation of the Company, the validity of the Securities, the Registration Statement, the Time of Sale ~~Information~~ Information, the Prospectus and other related matters as they may require, and the ~~Final Prospectus; and the Underwriters~~ Company shall have ~~received~~furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. In rendering such opinion, on Cravath, Swaine & Xxxxx LLP may rely as to the ~~Closing Date, a certificate dated the Closing Date and signed by the Minister of Finance~~ incorporation of the ~~Province~~Company and all other matters governed by Pennsylvania law, upon the ~~Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory~~ opinions referred to ~~the Representatives to the effect set forth~~ in ~~the first clause~~ subsections (d) and (e) of this ~~Section 9(b)~~Section. c(g) The ~~Underwriters~~ Representatives shall have received ~~an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province,~~ a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Provincecertificate, dated the Closing Date, to the effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations Chairman of the ~~Province in accordance with their respective terms~~ Board, President or any Vice-President and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official a principal financial or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated the Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another accounting officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion, to the effect that: (i) The Securities are exempted securities under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, Company in which such ~~Minister, Deputy Minister or other officer, as the case may be~~officers, to the best of ~~his or her~~ their knowledge after reasonable investigation, shall state that the representations and warranties of the ~~Province~~ Company in this Agreement are true and correct, that the ~~Province~~ Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, that no stop order suspending the effectiveness of the Registration Statement or of any parts thereof has been issued and no proceedings for that purpose or pursuant to Section 8A of the Act have been instituted or are contemplated by the ~~SEC~~Commission and that, 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 the Company and its subsidiaries considered in the aggregate, except as set forth in or contemplated by the Time of Sale Information and the Prospectus. i(h) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province Representatives shall have furnished to the Underwriters and to counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. k) Subsequent to the execution of this Agreement and prior to received a letter, dated the Closing Date, ~~there shall not have occurred any downgrading, nor shall any notice have been given~~ of ~~any intended or potential downgrading or of any placing on credit watch with negative implications~~PricewaterhouseCoopers LLP, in ~~the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters~~ form and ~~documents will be in compliance with the provisions hereof only if they are reasonably~~ substance satisfactory to the ~~Representatives~~Underwriters, which reconfirms the matters set forth in their letter delivered pursuant to subsection (a) of this Section and covers any additional financial information included in the Prospectus (which is not covered by their letter delivered pursuant to subsection (a) of this Section). The ~~Province~~ Company will furnish the ~~Underwriters~~ Representatives with such conformed copies of such opinions, certificates, letters and documents ~~as the Representatives~~ they reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.

Appears in 1 contract

Samples: Underwriting Agreement (Alcoa Inc)

Conditions of the Obligations of the Underwriters. The ~~respective~~ several obligations of the ~~several~~ Underwriters to purchase and pay for the ~~Securities~~ Notes will be subject to the accuracy of the representations and warranties ~~on the part of the Province~~ made herein~~, to the accuracy of the statements of the representatives of the Province made pursuant to the provisions hereof~~, to the performance by the ~~Province~~ Depositor and Verizon Wireless of ~~its~~ their obligations ~~hereunder and with regard to the Securities~~ hereunder, and to the following additional conditions precedent: (a) ~~Prior~~ On the Closing Date, each of the Transaction Documents shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully conformed copy of the Notes and Certificates, and the Notes shall have been duly executed and delivered by the Trust and duly authenticated by the Indenture Trustee. The Transaction Documents shall be substantially in the forms heretofore provided to the Representatives. (b) On or before the Closing Date, the Underwriters shall have received the Accountant’s Due Diligence Report and letters, dated as of the date of the Preliminary Prospectus and Prospectus, respectively, of the Accounting Firm, substantially in the form of the drafts to which the Representatives have agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Underwriters and counsel to the Underwriters. (c) The Prospectus and any supplements thereto shall have been filed (if required) with the Commission in accordance with the Rules and Regulations; and, before the Closing Date, no stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Province~~ Depositor or the ~~Representatives~~Underwriters, shall be contemplated by the ~~SEC; and each Issuer Free Writing Prospectus, to~~ Commission or by any authority administering any state securities or blue sky law. (d) Since the ~~extent required by Rule 433 under~~ respective dates as of which information is given in the ~~Securities Act, shall have been filed with the SEC under the Securities Act;~~ Preliminary Prospectus and the ~~Final~~ Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this Agreement. b) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have ~~occurred~~ been (i) any material adverse change in the ~~financial~~business, ~~economic~~ business prospects, properties, financial condition, or ~~political condition~~ results of operations of Verizon Wireless and its subsidiaries, including the ~~Province from that~~ Depositor and the Trust, taken as a whole, or (ii) any development involving a prospective material adverse change in or affecting the Receivables or the servicing or origination business of Verizon Wireless, in each case other than as set forth or contemplated in the ~~Registration Statement, the Time of Sale Information~~ Preliminary Prospectus and the ~~Final~~ Prospectus; and the Underwriters shall have received, on the Closing Date, a certificate dated the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth in the first clause of this Section 9(b). c(e) The Underwriters shall have received an opinion or opinions of in-house counsel to the ~~Attorney General~~ Depositor and Verizon Wireless, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (f) The Underwriters shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the ~~Province~~Depositor, Verizon Wireless and the ~~Deputy Attorney General of the Province~~Trust, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory addressed to the Representatives, ~~as Canadian~~ dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the ~~Province~~Underwriters, addressing (i) corporate, enforceability and security matters, (ii) the validity of the Notes, (iii) certain true sale and nonconsolidation bankruptcy matters, (iv) bankruptcy proceedings of Verizon Wireless with respect to preference matters, [(v) bankruptcy proceedings of Verizon Wireless and the impact of Annual Upgrade Offers,] (vi) certain security interest matters and (vii) certain United States federal income tax matters. (g) The Underwriters shall have received one or more negative assurance letters of Xxxxxx Xxxxx & Bockius LLP, counsel to the Trust, the Depositor and Verizon Wireless, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (h) The Underwriters shall have received an opinion or opinions, addressed to the Underwriters, of [___], counsel to the Indenture Trustee, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (i) The Underwriters shall have received an opinion or opinions, addressed to the Underwriters, of [___], counsel to the Owner Trustee, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (j) The Underwriters shall have received an opinion or opinions, addressed to the Underwriters, of [___], special Delaware counsel for the Trust, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (k) The Underwriters shall have received an opinion or opinions, addressed to the Underwriters, of [___], special Delaware counsel to the Depositor, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (l) The Underwriters shall have received an opinion or opinions, addressed to the Underwriters, of [___], special Delaware counsel to the Master Trust, dated as of the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (m) The Underwriters shall have received an opinion or opinions, addressed to the Underwriters, of [in-house counsel][[___], counsel] to the Asset Representations Reviewer, dated the Closing Date, and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (n) The Underwriters shall have received one or more negative assurance letters of Xxxxx Xxxxx LLP, counsel for the Underwriters, addressed to the Underwriters. (o) The Underwriters shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Underwriters, dated the Closing Date, to the effect that ~~under~~ the ~~laws~~ Representatives and the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securitiesits date. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. dp) The Underwriters shall have received ~~an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada,~~ certificates dated the Closing ~~Date, as to the matters specified in subdivisions (i) through (vii)~~ Date of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) any one of the ~~Minister of Finance~~ President, Chief Financial Officer, any Vice President, the Controller, the Treasurer or Assistant Treasurer of the ~~Province, the Deputy Minister of Finance of the Province or another~~ Depositor and Verizon Wireless in which such officer ~~of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion~~ shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion, to the effect that: (i) The Securities are exempted securities under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that : (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of made by such entity contained in the ~~Province in~~ Transaction Documents and this Agreement are true and ~~correct~~correct in all material respects (except to the extent any such representation or warranty is already qualified by materiality, in which case such representation or warranty is true and correct in all respects), that ~~the Province~~ such party has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at under such agreements on or ~~prior~~ before the Closing Date in all material respects (except to the extent any such agreement or condition is already qualified by materiality, in which case such agreement or condition has been complied with or satisfied, as applicable, in all respects), (B) since the date of this Agreement there has not occurred (i) any material adverse change in the business, business prospects, properties, financial condition or results of operations of the Trust, the Depositor or Verizon Wireless or (ii) to the best of such officer’s knowledge, any development involving a prospective material adverse change in or affecting the Receivables or the servicing or origination business of Verizon Wireless, in each case except as disclosed to the Representatives in writing and (C) there are no actions, proceedings or investigations to which the Depositor or Verizon Wireless is a party or that are, to such party’s knowledge after due inquiry, threatened before any court, administrative agency or other tribunal having jurisdiction over Verizon Wireless or the Depositor, (i) asserting the invalidity of this Agreement, any Transaction Document or the Notes, (ii) seeking to prevent the issuance of the Notes or the consummation of any of the transactions contemplated by this Agreement or the Transaction Documents, (iii) which would reasonably be expected to have a Material Adverse Effect or (iv) seeking adversely to affect the federal income tax attributes of the Notes as described in the Prospectus or the Preliminary Prospectus under the heading “Tax Considerations.” (q) The Representatives shall have received evidence satisfactory to the Representatives and counsel to the Underwriters that, on or before the Closing Date, ~~that no stop order suspending~~ UCC-1 financing statements, have been or are being filed in all applicable governmental offices reflecting (A) the ~~effectiveness~~ transfer of the ~~Registration Statement has been issued~~ interest of the Originators in the related Receivables, and ~~no proceedings for that purpose~~ the proceeds thereof to the Depositor pursuant to the Originator Receivables Transfer Agreement, (B) the transfer of the interest of the Master Trust in the related Receivables and the proceeds thereof to the Depositor pursuant to the Master Trust Receivables Transfer Agreement, (C) the transfer of the interest of the Depositor in the Originator Receivables Transfer Agreement, the Master Trust Receivables Transfer Agreement, the Receivables and the proceeds thereof to the Trust pursuant to the Transfer and Servicing Agreement, and (D) the grant by the Trust to the Indenture Trustee under the Indenture of a security interest in the interest of the Trust in the Transfer and Servicing Agreement, the Receivables and the proceeds thereof. (r) The Class A-1[a] Notes shall have been ~~instituted or are contemplated~~ rated at least [_] by ~~the SEC~~[___] and at least [_] by [___]. [The Class A-1b Notes shall have been rated at least [_] by [___] and at least [_] by [___].] The Class A-2 Notes shall have been rated at least [_] by [___] and at least [_] by [___]. The Class A-3 Notes shall have been rated at least [_] by [___] and at least [_] by [___]. The Class B Notes shall have been rated at least [_] by [___] and at least [_] by [___]. The Class C Notes shall have been rated at least [_] by [___] and at least [_] by [___]. The Class D Notes shall have been rated at least [_] by [___] and at least [_] by [___]. The Class E Notes shall have been rated at least [_] by [___] and at least [_] by [___]. (s) The Underwriters shall have received, from each of Verizon Wireless, Verizon, the Originators and the Depositor, a certificate executed by a secretary or assistant secretary thereof (or the equivalent) to which shall be attached certified copies of the: (i) formation and governing documents, (ii) applicable resolutions and (iii) designation of incumbency of each such entity. The ~~purchase and sale~~ Underwriters shall have received, from the Trust, a certified copy of the ~~Securities in accordance with~~ certificate of formation and an executed copy of the ~~provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority~~ trust agreement evidencing formation of ~~Canada,~~ the ~~United States of America, the Province or the State of New York~~trust. j(t) The ~~Province~~ Representatives shall have ~~furnished~~ received evidence of any required Lien releases to be filed or recorded (immediately following the Closing Date) with respect to the ~~Underwriters~~ Permitted Liens affecting the Receivables from all applicable creditors of Verizon Wireless, in form and substance satisfactory to ~~counsel for the Underwriters such further certificates and documents as~~ the Representatives and ~~such~~ counsel ~~reasonably request~~to the Underwriters. k(u) ~~Subsequent~~ All representations and warranties made by or on behalf of Verizon Wireless and the Depositor in the Transaction Documents to which each is a party are true and correct in all material respects as of the Closing Date. (v) [The Underwriters shall have received an opinion of [___], special counsel to the ~~execution~~ [Cap][Swap] Counterparty, addressed to the Representatives, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters, addressing the enforceability of ~~this Agreement and prior to~~ the [Cap][Swap] Agreement.] (w) The Representatives shall have received a certificate, dated the Closing Date, ~~there shall not have occurred~~ signed by an authorized officer or any ~~downgrading, nor shall any notice have been given~~ Vice President of ~~any intended or potential downgrading or of any placing on credit watch with negative implications~~the Indenture Trustee, in which such officer shall state that the ~~ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency~~ information contained in the ~~United States. All such opinions, certificates, letters~~ Form T-1 for the Indenture Trustee is true and ~~documents will be in compliance~~ accurate as of its filing with the ~~provisions hereof only if they are reasonably satisfactory~~ Commission. The Depositor will provide or cause to be provided to the ~~Representatives. The Province will furnish the~~ Underwriters ~~with such~~ conformed copies of such opinions, certificates, letters and documents as the ~~Representatives~~ Underwriters or counsel to the Underwriters reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.

Appears in 1 contract

Samples: Underwriting Agreement (Verizon ABS LLC)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the ~~several~~ Underwriters ~~to purchase and pay for the Securities will be~~ hereunder are subject to the accuracy of the representations and warranties on the part of the Province herein, to the accuracy of the statements of the representatives of the Province made pursuant to the provisions hereof, to the performance by the Province of its obligations hereunder and with regard to the Securities and to the following ~~additional conditions precedent~~conditions: (a) ~~Prior to the Closing Date,~~ The Prospectus shall have been filed as required by Section 3(a) and (i) no stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement shall have been issued and no proceedings for that purpose shall ~~have been instituted or~~be pending or threatened by the Commission, to (ii) no order suspending the ~~knowledge~~ effectiveness of the ~~Province~~ Registration Statement or the ~~Representatives,~~ qualification or registration of the Securities under the securities or blue sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by the ~~SEC; and each Issuer Free Writing Prospectus~~Commission or the authorities of any such jurisdiction, to (iii) any request for additional information on the ~~extent required by Rule 433 under~~ part of the ~~Securities Act,~~ staff of the Commission or any such authorities shall have been ~~filed~~ complied with to the ~~SEC under~~ satisfaction of the ~~Securities Act;~~ staff of the Commission or such authorities and (iv) after the ~~Final~~ date hereof no amendment or supplement to the Registration Statement or the Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters and the Underwriters did not object thereto in good faith. (b) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of Operating Partnership and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) neither the Company nor any of its subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the ~~SEC pursuant~~ Registration Statement and the Prospectus, if in the judgment of the Underwriters any such development makes it impracticable or inadvisable to ~~Rule 424 not later than 5:00 p.m. New York City time~~consummate the sale and delivery of the Securities by the Underwriters and at the public offering price. (c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its subsidiaries or any of their respective officers or directors or trustees, as the case may be, in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceeding it is reasonably probable that an unfavorable ruling, decision or finding would have a Material Adverse Effect. (d) Each of the representations and warranties of the REIT and the Operating Partnership contained herein shall be true and correct in all material respects at the Closing Date, as if made at the Closing Date, and all covenants and agreements contained herein to be performed on the ~~second business day following~~ part of the ~~date of this Agreement~~Company and all conditions contained herein to be fulfilled or complied with by the Company at or prior to the Closing Date, shall have been duly performed, fulfilled or complied with. b(e) Subsequent to the execution and delivery of this Underwriting Agreement and prior to the Closing Date, there shall not have occurred any ~~material adverse change~~ downgrading in the ~~financial, economic~~ rating accorded the Securities or ~~political condition~~ any other debt securities of the ~~Province from~~ Company by any Rating Agency nor shall any notice have been given to the Company of (i) any intended or potential downgrading by any Rating Agency in such securities, or (ii) any review or possible change by any Rating Agency that ~~set forth in the Registration Statement~~does not indicate a stable, ~~the Time of Sale Information and the Final Prospectus; and the~~ positive or improving rating accorded such securities. (f) The Underwriters shall have ~~received~~received one or more opinions, ~~on the Closing Date, a certificate~~ dated the Closing Date and ~~signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance~~ satisfactory in form and substance to the ~~Representatives~~ Underwriters' counsel, from Xxxxxxx, Procter LLP, counsel to the Company, (i) to the effect set forth in EXHIBIT B and (ii) concerning the tax matters set forth below: (i) Commencing with the Company's first ~~clause~~ taxable year ended December 31, 1994, the Company has been organized in conformity with the requirements for qualification as a REIT under the Code, and the Company's method of ~~this Section 9(b)~~operation, as described in the Prospectus and in company certificates delivered to such counsel, will enable it to continue to meet the requirements for qualification and taxation as a REIT under the Code; and (ii) The statements in the Prospectus Supplement and the Prospectus under the captions "Additional Federal Income Tax Considerations and Consequences of Your Investment" and "Federal Income Tax Considerations and Consequences of Your Investment," to the extent such information constitutes matters of law, summaries of legal matters, or legal conclusions, have been reviewed by such counsel and are accurate in all material respects as of the date of such opinion. c(g) The Underwriters shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Provinceopinion, dated the Closing Date, from O'Melveny & Xxxxx LLP, Underwriters' counsel, with respect to the ~~effect that under~~ Registration Statement, the ~~laws of British Columbia~~ Prospectus and ~~Canada and subject~~ this Agreement, which opinion shall be satisfactory in all respects to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the ~~Securities~~Underwriters. (iih) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance Concurrently with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this ~~Agreement and the Fiscal Agency~~ Agreement, the ~~issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder~~ Accountants shall have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available furnished to the ~~Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not~~ Underwriters a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canadaletter, dated the ~~Closing Date~~date of its delivery, as addressed to the ~~matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications~~ Underwriters and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to ~~them~~ the Underwriters, confirming that they are independent accountants with respect to the Company as required by the Act and ~~they believe that~~ the ~~Representatives are justified~~ Rules and Regulations and with respect to the financial and other statistical and numerical information contained in ~~relying thereon. e) The Underwriters shall have received~~ the ~~opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated~~ Registration Statement or incorporated by reference therein. At the Closing Date, ~~subject~~ the Accountants shall have furnished to ~~such qualifications and based upon such assumptions as are customary~~ the Underwriters a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the ~~United States~~ letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in ~~respect~~ the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date which would require any change in their letter dated the date hereof if it were required to be dated and delivered at the Closing Date. (i) At the Closing Date, there shall be furnished to the Underwriters an accurate certificate, dated the date of ~~such opinion~~its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of each of (a) Gables GP on behalf of the Operating Partnership and (b) the REIT, in form and substance satisfactory to the Underwriters, to the effect that: (i) The ~~Securities are exempted securities~~ Prospectus has been filed as required by Section 3(a) and no stop order suspending the effectiveness of the Registration Statement under the ~~Trust Indenture~~ Act or the blue sky laws of ~~1939~~any jurisdiction has been issued and, ~~as amended (~~to the ~~“Trust Indenture Act”)~~best of their knowledge, information and belief, no ~~qualification~~ proceeding for such purpose is pending before or threatened or contemplated by the Commission or the authorities of ~~an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities~~any such jurisdiction. (ii) ~~The statements in~~ Any request for additional information on the ~~Time~~ part of ~~Sale Information and Final Prospectus under “Description~~ the staff of ~~Bonds” and “Description~~ the Commission or any such authorities has been complied with to the satisfaction of ~~Debt Securities and Warrants”, insofar as~~ the staff of the Commission or such ~~statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein~~authorities. (iii) ~~The statements in~~ Each signer of such certificate has carefully examined the ~~Time of Sale Information,~~ Registration Statement and ~~Final~~ the Prospectus (including any documents filed under ~~“Description of Debt Securities~~ the Exchange Act and ~~Warrants — United States Federal Income Taxation”, as supplemented~~ deemed to be incorporated by ~~“Tax Matters — United States Taxation”, to~~ reference into the ~~extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv~~Prospectus) ~~Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province~~ and ~~their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that~~ (A) ~~the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment),~~ believes that as of the date of ~~this Agreement~~such certificate, ~~contained an untrue statement of a~~ such documents are true and correct in all material ~~fact or omitted~~ respects and do not omit to state a material fact required to be stated therein or necessary in order to make the statements therein not ~~misleading;~~ untrue or misleading and (B) does not know of any event that has occurred as a result of which it is necessary to amend or supplement the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, contained an untrue statement of a material fact or omitted to state a material fact necessary Prospectus in order to make the statements ~~therein,~~ therein not untrue or misleading in any material respect and there has been no document required to be filed under the ~~light of~~ Exchange Act and the ~~circumstances under which they were made, not misleading; or (C)~~ Exchange Act Rules and Regulations that upon such filing would be deemed to be incorporated by reference into the ~~Final~~ Prospectus ~~(other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel~~ that has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunderso filed. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) ~~(but only as~~ Each of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of the ~~Province~~ Company contained in this Agreement ~~are~~ were, when originally made, and are, at the time such certificate is delivered, true and ~~correct, that~~ correct in all material respects. (v) Each of the ~~Province has complied with all agreements and satisfied all conditions on its part~~ covenants required to be performed ~~or satisfied at~~ by the Company herein on or prior to the ~~Closing Date~~delivery of such certificate has been duly, ~~that no stop order suspending~~ timely and fully performed and each condition herein required to be complied with by the ~~effectiveness~~ Company on or prior to the date of such certificate has been duly, timely and fully complied with. (vi) Since the execution and delivery of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the SEC. i) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province shall have furnished to the Underwriters and to counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. k) Subsequent to the execution of this Underwriting Agreement and prior to the Closing Date, there ~~shall~~ has not ~~have~~ occurred any ~~downgrading,~~ downgrading in the rating accorded the Securities or any other debt securities of the Company by any Rating Agency nor ~~shall~~ has any notice ~~have~~ been given to the Company of (A) any intended or potential downgrading by any Rating Agency in such securities, or of (B) any ~~placing~~ review or possible change by any Rating Agency that does not indicate a stable, positive or improving rating accorded such securities. (j) The Securities shall be qualified for sale in such states as the Underwriters may reasonably request, each such qualification shall be in effect and not subject to any stop order or other proceeding on ~~credit watch with negative implications~~the Closing Date. (k) The Company shall have furnished to the Underwriters such certificates, ~~in the ratings accorded the debt securities~~ including, without limitation, one or more certificates of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The Province will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. If any Secretary of the ~~above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement~~ REIT and ~~all obligations~~ the Secretary of ~~the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives~~ Gables GP on behalf of the ~~Underwriters~~Operating Partnership, ~~without any liability on~~ in addition to those otherwise specifically mentioned herein, as the ~~part~~ Underwriters may have reasonably requested as to the accuracy and completeness at the Closing Date of any ~~Underwriter~~ statement in the Registration Statement or the Prospectus or any documents filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus, as to the ~~Province or~~ accuracy at the Closing Date of the ~~Province~~ representations and warranties of the Company herein as to ~~any Underwriter, except~~ the performance by the Company of its obligations hereunder or as ~~provided in Section 6, Section 10~~ to the fulfillment of the conditions concurrent and ~~Section 13 hereof. Notice~~ precedent to the obligations hereunder of ~~such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement~~the Underwriters.

Appears in 1 contract

Samples: Underwriting Agreement (Gables Realty Limited Partnership)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the ~~several~~ Underwriters to purchase and pay for the ~~Securities~~ Underwritten Notes and the Class C Certificates will be subject to the accuracy of the representations and warranties on the part of the ~~Province~~ Seller herein, to the accuracy of the statements of ~~the representatives~~ officers of the ~~Province~~ Seller and Ford Xxxdit made pursuant to the provisions hereof, to the performance by the ~~Province~~ Seller of its obligations hereunder ~~and with regard to the Securities~~ and to the following additional conditions precedent: (a) ~~Prior~~ On or prior to the Closing Date, [________________________] shall have furnished to the Representatives a letter dated as of the Closing Date substantially in the form and substance of the draft to which the Representatives previously agreed. (b) On the Closing Date, the Registration Statement shall be effective and no stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement or any post-effective amendment shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Province or the Representatives~~Seller, shall be contemplated by the ~~SEC; and each Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act,~~ Commission. (c) The Representatives shall have ~~been filed with~~ received as of the ~~SEC under~~ Closing Date an officer's certificate signed by an officer, Member of the ~~Securities Act; and~~ Company, the ~~Final Prospectus shall have been filed with~~ Chairman of the ~~SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time~~Board of Managers or the President, on behalf of the ~~second business day following the date~~ Seller representing and warranting that, as of ~~this Agreement. b) Subsequent to the execution of this Agreement and prior to~~ the Closing Date, ~~there shall not have occurred any material adverse change~~ except to the extent that they relate expressly to another date in ~~the financial, economic or political condition~~ which case they will be true and correct as of ~~the Province from that set forth in the Registration Statement, the Time of Sale Information and the Final Prospectus; and the Underwriters shall have received,~~ such date on the Closing Date, a certificate dated the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth in the first clause of this Section 9(b). c) The Underwriters shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Province, dated the Closing Date, to the effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated the Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion, to the effect that: (i) The Securities are exempted securities under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of the ~~Province~~ Seller in this Underwriting Agreement ~~are~~ will be true and ~~correct~~correct in all material respects, that the Province has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the SEC. i) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province shall have furnished to the Underwriters and to counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. k) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The Province will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.Seller has

Appears in 1 contract

Samples: Underwriting Agreement (Ford Credit Auto Receivables Two LLC)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the ~~several~~ Underwriters to purchase and pay for the ~~Securities~~ Notes will be subject to the accuracy of the representations and warranties on the part of the ~~Province~~ Depositor and MBFS USA herein, to the accuracy of the ~~statements~~ certifications of officers of the ~~representatives of the Province~~ Mercedes Parties made pursuant to the provisions hereof, to the performance by the ~~Province~~ Depositor and MBFS USA of ~~its~~ their obligations hereunder ~~and with regard to the Securities~~ and to the following additional conditions precedent: (a) ~~Prior~~ The Registration Statement shall be effective at the Execution Time, and prior to the 201[__]-[__] Closing Date, no stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the Securities Act shall have been instituted or, to the knowledge of the ~~Province~~ Depositor or the Representatives, shall be contemplated by the ~~SEC;~~ Commission. (b) Each of the Preliminary Prospectus and ~~each Issuer~~ the Prospectus and any supplements thereto shall have been filed (if required) with the Commission in accordance with the Rules and Regulations and Section 6(a) hereof. Each of the Pricing Free Writing Prospectus, to [the ~~extent required by Rule 433 under the Securities Act~~Initial Ratings Free Writing Prospectus], ~~shall have been filed with the SEC under the Securities Act;~~ and the ~~Final~~ Ratings Free Writing Prospectus shall have been filed with the ~~SEC pursuant~~ Commission in accordance with Rule 433 of the Rules and Regulations. (c) On or prior to ~~Rule 424 not later than 5:00 p.m. New York City time, on the second business day following~~ the date of this ~~Agreement~~Agreement and on or prior to the 201[__]-[__] Closing Date, the Representatives shall have received a letter or letters, dated as of the date of this Agreement and as of the 201[__]-[__] Closing Date, respectively, of an independent registered public accounting firm reasonably acceptable to the Representatives, substantially in the form of the drafts to which the Representatives have previously agreed and otherwise in form and substance satisfactory to the Representatives and their counsel. b(d) Subsequent to the execution and delivery of this ~~Agreement and prior to the Closing Date~~Agreement, there shall not have occurred (i) any ~~material adverse change~~ change, or any development involving a prospective change, in or affecting particularly the business or properties of any Mercedes Party which, in the ~~financial, economic or political condition~~ judgment of the ~~Province from that set forth~~ Representatives, materially impairs the investment quality of the Notes or makes it impractical or inadvisable to market the Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum or maximum prices for trading on such exchange, or a material disruption in commercial banking or securities settlement or clearance services in the ~~Registration Statement~~United States or with respect to Clearstream or Euroclear systems in Europe; (iii) any general commercial banking moratorium declared by Federal, Delaware or New York authorities; 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 the Representatives, the effect of any such outbreak, escalation, declaration, calamity or emergency on the U.S. financial markets makes it impractical or inadvisable to proceed with the offering, sale of and payment for the Notes. (e) The Representatives shall have received opinions of Sidley Austin LLP, counsel to the Mercedes Parties and such other counsel acceptable to the Underwriters, relating to general corporate and enforceability, tax, perfection and priority, and true sale/nonconsolidation matters addressed to the Representatives, dated the 201[__]-[__] Closing Date and satisfactory in form and substance to the Representatives and their counsel. Such counsel shall also opine as to such other matters as the Underwriters may reasonably request. (f) The Representatives shall have received opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Mercedes Parties, the Owner Trustee and the Titling Trustee and such other counsel acceptable to the Underwriters, relating to general corporate and enforceability matters addressed to the Representatives, dated the 201[__]-[__] Closing Date and satisfactory in form and substance to the Representatives and their counsel. (g) The Representatives shall have received an opinion addressed to them by Sidley Austin LLP in its capacity as special tax counsel to the Issuer, dated the 201[__]-[__] Closing Date, substantially to the effect that the statements in each of the Preliminary Prospectus and the Prospectus under the headings “Summary of Terms––Tax Status” (to the extent relating to Federal income tax consequences), and “Material Federal Income Tax Consequences” to the extent that they constitute statements of matters of law or legal conclusions with respect thereto, have been prepared or reviewed by such counsel and accurately describe the material income tax consequences to holders of the Notes, and the statements in each of the Preliminary Prospectus and the Prospectus under the heading “Summary of Terms––ERISA Considerations” and “ERISA Considerations,” to the extent that they constitute statements of matters of law or legal conclusions with respect thereto, have been prepared or reviewed by such counsel and accurately describe the material consequences to holders of the Notes under ERISA. (h) The Representatives shall have received a negative assurance letter addressed to them of Sidley Austin LLP, counsel to the Mercedes Parties, dated the Closing Date, concerning the Time of Sale Information and the ~~Final Prospectus;~~ Prospectus in form and the Underwriters shall have received, on the Closing Date, a certificate dated the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance substance reasonably satisfactory to the Representatives and their counsel. (i) The Representatives shall have received a negative assurance letter addressed to them of [___________], counsel to the ~~effect set forth~~ Underwriters, dated the 201[__]-[__] Closing Date, concerning the Time of Sale Information and the Prospectus in form and substance reasonably satisfactory to the ~~first clause of this Section 9(b)~~Representatives and their counsel. c(j) The ~~Underwriters~~ Representatives shall have received an opinion of ~~the Attorney General of the Province~~[_____________], ~~the Deputy Attorney General of the Province~~counsel to [______________________], Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory relating to general corporate and enforceability matters addressed to the Representatives, ~~as Canadian counsel~~ dated the 201[__]-[__] Closing Date and satisfactory in form and substance satisfactory to the ~~Province,~~ Representatives and their counsel. (k) The Representatives shall have received certificates dated the 201[__]-[__] Closing ~~Date~~Date of the Chairman of the Board, the President, the Executive Vice President, any Vice President, the Treasurer, any Assistant Treasurer, the Secretary, the principal financial officer or the principal accounting officer of each of the Depositor and MBFS USA, in which such officer shall state that, to the ~~effect that under the laws~~ best of ~~British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type:~~ his/her knowledge after reasonable investigation, (i) ~~The Province has full power~~ the representations and ~~authority to execute~~ warranties of the Depositor and ~~deliver~~ MBFS USA, respectively, contained in this Agreement are true and ~~to issue and sell the Securities. (ii) This Agreement~~ correct and the ~~Fiscal Agency Agreement have been duly authorized~~representations and warranties of the Mercedes Parties, ~~executed and delivered by~~ respectively, contained in the ~~Province and each~~ 201[__]-[__] Basic Documents to which it is a ~~valid and legally binding agreement of the Province~~party, ~~except~~ as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to thereinapplicable, are ~~accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information~~ true and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize correct in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated the Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representativeseach Mercedes Party, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion, to the effect that: (i) The Securities are exempted securities under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of the Province in this Agreement are true and correct, that the Province has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements at or prior to the 201[__]-[__] Closing Date, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or pursuant to Section 8A of the Securities Act have been instituted or are contemplated by the ~~SEC~~Commission, and (ii) other than as described in such certificate, since the Time of Sale, no material adverse change, or development involving a prospective material adverse change, in or affecting particularly the business or properties of any Mercedes Party, as the case may be, has occurred. (l) The Representatives shall have received evidence satisfactory to it of the filing of all UCC financing statements necessary to perfect (i) ~~The purchase~~ the Collateral Agent’s interest in the Collateral and ~~sale~~ (ii) the transfer of the ~~Securities~~ interest of MBFS USA in ~~accordance with~~ the ~~provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada~~201[__]-[__] Exchange Note and the proceeds thereof to the Depositor, the ~~United States~~ transfer of ~~America,~~ the ~~Province or~~ interest of the ~~State~~ Depositor in the 201[__]-[__] Exchange Note and the proceeds thereof to the Issuer and the grant of ~~New York~~the security interest by the Issuer in the 201[__]-[__] Exchange Note and the proceeds thereof to the Indenture Trustee. j(m) The ~~Province~~ Representatives shall have ~~furnished~~ received, from each of the Depositor and MBFS USA, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of (i) the ~~Underwriters~~ formation documents, (ii) the limited liability company agreement, bylaws or trust agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and ~~to counsel for~~ by the ~~Underwriters~~ 201[__]-[__] Basic Documents and (iv) the designation of incumbency of each such ~~further certificates and documents as the Representatives and such counsel reasonably request~~entity. k(n) ~~Subsequent to the execution~~ Each class of ~~this Agreement and prior to the Closing Date, there~~ Notes shall ~~not have occurred any downgrading, nor shall any notice~~ have been ~~given of any intended or potential downgrading or of any placing on credit watch with negative implications,~~ rated by each Hired NRSRO as set forth in the ~~ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency~~ Ratings Free Writing Prospectus, and in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The Province will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. If any of the above conditions each case shall not have been ~~fulfilled as reasonably contemplated herein, this Agreement and all obligations of~~ placed on any credit watch or review with a negative implication for downgrade. (o) On the ~~Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to~~201[__]-[__] Closing Date, the ~~Closing Date~~ Certificates shall have been issued by the ~~Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter~~ Issuer and transferred to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this AgreementDepositor.

Appears in 1 contract

Samples: Underwriting Agreement (Daimler Trust)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the several Underwriters to purchase and pay for the ~~Securities will~~ Firm Common Shares on the First Closing Date and the Optional Common Shares on the Second Closing Date shall be subject to the accuracy of the representations and warranties on the part of the ~~Province herein~~Company herein set forth as of the date hereof and as of the First Closing Date or the Second Closing Date, as the case may be, to the accuracy of the statements of ~~the representatives of the Province~~ Company officers made pursuant to the provisions hereof, to the performance by the ~~Province~~ Company of its obligations ~~hereunder and with regard to the Securities~~ hereunder, and to the following additional ~~conditions precedent~~conditions: (a) ~~Prior~~ The Registration Statement shall have become effective not later than 4:00 P.M., Colorado time, on the date following the date of this Agreement, or at such later time as shall have been consented to ~~the Closing Date,~~ in writing by you; and no stop order suspending the effectiveness ~~of the Registration Statement, as amended from time to time,~~ thereof shall have been issued and no proceedings for that purpose shall have been ~~instituted~~ initiated or, to the knowledge of the ~~Province~~ Company or any Underwriter, threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement or the ~~Representatives, shall be contemplated by the SEC; and each Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act,~~ Prospectus or otherwise) shall have been ~~filed~~ complied with to the ~~SEC under~~ satisfaction of Underwriters' counsel. (b) All corporate proceedings by the ~~Securities Act;~~ Company and other legal matters in connection with this Agreement, the form of the Registration Statement and the ~~Final Prospectus~~ Prospectus, and the registration, qualification, authorization, issue, sale and delivery of the Common Shares shall have been ~~filed~~ reasonably satisfactory to Underwriters' counsel, and such counsel shall have been furnished with such papers and information as counsel may reasonably have requested to enable counsel to pass upon the ~~SEC pursuant~~ matters referred to ~~Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of~~ in this ~~Agreement~~Section. b(c) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any material adverse change in the financial, economic or political condition of the Province from that set forth in the Registration Statement, the Time of Sale Information and the Final Prospectus; and the Underwriters shall have received, on the Closing Date, a certificate dated the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth in the first clause of this Section 9(b). c) The Underwriters shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Province, dated the Closing Date, to the effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and prior to the ~~Fiscal Agency Agreement~~First Closing Date and the Second Closing Date, if applicable, there shall not have been any change in the ~~issuance~~ condition (financial or otherwise), earnings, operations, business or business prospects of the ~~Securities~~ Company from that set forth in the Registration Statement or Prospectus, which, in your sole judgment, is material and adverse and that makes it, in your sole judgment, impracticable or inadvisable to proceed with the ~~performance~~ public offering of the Common Shares as contemplated by the ~~Province of its obligations hereunder and thereunder have been obtained and are in full force and effect~~Prospectus. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) ~~The Underwriters~~ You shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated the Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the ~~basis of an independent examination of such records, certificates~~ First Closing Date and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representativeson any later date on which Common Shares are purchased, as the case may be, ~~Canadian counsel to~~ the ~~Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereon. e) The Underwriters shall have received the~~ following opinion of ~~Sxxxxxxx~~ Xxxxxxxx, Xxxxx & ~~Sterling LLP~~Xxxxxxx, ~~United States~~ counsel for the ~~Province~~Company, dated the First Closing ~~Date~~Date or such later date on which Optional Common Shares are purchased, ~~subject~~ addressed to ~~such qualifications~~ the Representative, on behalf of the Underwriters (and ~~based~~ stating that it may be relied upon ~~such assumptions as are customary in~~ by counsel for the ~~United States in respect of such opinion~~Underwriters), to the effect that: (i) The ~~Securities are exempted securities~~ Company is a corporation in good standing under the ~~Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect~~ laws of the ~~Securities under the Trust Indenture Act is required for the issuance, sale and delivery~~ jurisdiction of ~~the Securities.~~its incorporation; (ii) The ~~statements~~ Company has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein.Prospectus; (iii) The ~~statements~~ Company is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction, if any, in which the ~~Time~~ ownership or leasing of ~~Sale Information~~its properties or the conduct of its business requires such qualification, ~~and Final Prospectus under “Description~~ except where failure to be so qualified or be in good standing would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of ~~Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to~~ the ~~extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein.~~Company; (iv) ~~Based upon~~ To such counsel~~’s participation in conferences with representatives~~ 's knowledge, the Company does not own or control, directly or indirectly, any corporation, association or other entity; (v) The authorized, issued and outstanding capital stock of the ~~Province~~Company is as set forth in the Prospectus under the caption "Capitalization" as of the dates stated therein, ~~counsel for~~ the ~~Province~~ issued and ~~their examination~~ outstanding shares of ~~specified documents~~capital stock of the Company have been duly and validly issued and are fully paid and nonassessable, ~~no facts have come~~ and, to such counsel~~’s attention which caused such counsel~~ 's knowledge, will not have been issued in violation of or subject to ~~believe that~~ any preemptive right, co-sale right, registration right, right of first refusal or other similar right of stockholders; (Avi) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement The Firm Common Shares and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officerOptional Common Shares, as the case may be, to be issued by the ~~best~~ Company pursuant to the terms of ~~his~~ this Agreement each have been duly authorized and, upon issuance and delivery against payment therefor in accordance with the terms hereof, will be duly and validly issued and fully paid and nonassessable, and will not have been issued in violation of or ~~her knowledge after reasonable investigation~~subject to any preemptive right, ~~shall state that~~ co- sale right, registration right, right of first refusal or other similar right of stockholders; (vii) The Company has the ~~representations~~ corporate power and ~~warranties~~ authority to enter into this Agreement and to issue, sell and deliver to the Underwriters the Common Shares to issued and sold by it hereunder; (viii) The Company has the corporate power and authority to issue, sell and deliver to the Representative the Representative's Warrants to be issued and sold by it hereunder; (ix) Each of this Agreement and the Representative's Warrant has been duly authorized by all necessary corporate action on the part of the ~~Province~~ Company and has been duly executed and delivered by the Company and, assuming due authorization, execution and delivery by you, is a valid and binding agreement of the Company, enforceable in ~~this Agreement are true~~ accordance with its terms, except insofar as indemnification provisions may be limited by applicable law and ~~correct~~except as enforceability may be limited by bankruptcy, ~~that~~ insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally or by equitable principles; (x) The Registration Statement has become effective under the ~~Province has complied with all agreements and satisfied all conditions on its part~~ Act and, to ~~be performed or satisfied at or prior to the Closing Date~~such counsel's knowledge, ~~that~~ no stop order suspending the effectiveness of the Registration Statement has been issued and no ~~proceedings~~ proceeding for that purpose have been instituted or are ~~contemplated by~~ pending or threatened under the ~~SEC.~~Act; i(xi) The ~~purchase~~ Registration Statement and ~~sale~~ the Prospectus, and each amendment or supplement thereto (other than the financial statements (including supporting schedules) and financial data derived therefrom as to which such counsel need express no opinion), as of the effective date of the Registration Statement, complied as to form in all material respects with the requirements of the Securities ~~in accordance with~~ Act of 1933 and the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York.applicable Rules and Regulations thereunder; j(xii) The ~~Province shall have furnished to~~ information in the ~~Underwriters~~ Prospectus under the captions "Management," "Certain Transactions," "Description of Capital Stock," and ~~to counsel~~ "Shares Eligible for Future Sale," and in the ~~Underwriters~~ Registration Statement in Items 24 and 26 and insofar as such ~~further certificates and documents as the Representatives and~~ information constitutes matters of law or legal conclusions, has been reviewed by such counsel ~~reasonably request. k) Subsequent to the execution of this Agreement~~ and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The Province will furnish the Underwriters with such conformed copies is a fair summary of such ~~opinions, certificates, letters~~ matters and documents as the Representatives reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.conclusions;

Appears in 1 contract

Samples: Underwriting Agreement (Eldorado Artesian Springs Inc)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of ~~the several Underwriters to purchase and pay for the Securities will be~~ each Underwriter hereunder are subject to the ~~accuracy~~ following conditions: (a) All filings required by Rule 424 and Rule 430A of the ~~representations~~ Rules and ~~warranties~~ Regulations shall have been made. If the Company has elected to rely upon Rule 462(b), the registration statement filed under Rule 462(b) shall have become effective by 10:00 p.m., Washington, D.C. time, on the ~~part~~ date of the Province herein, to the accuracy of the statements of the representatives of the Province made pursuant to the provisions hereof, to the performance by the Province of its obligations hereunder and with regard to the Securities and to the following additional conditions precedent:this Agreement. a(i) ~~Prior to the Closing Date, no~~ No stop order suspending the effectiveness of the Registration ~~Statement~~Statement or preventing or suspending the use of the Base Prospectus, ~~as amended from time to time~~any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall ~~have been instituted or~~be pending or threatened by the Commission, to (ii) no order suspending the ~~knowledge~~ effectiveness of the ~~Province~~ Registration Statement or the ~~Representatives,~~ qualification or registration of the Shares under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by the ~~SEC; and each Issuer Free Writing Prospectus~~Commission or the authorities of any such jurisdiction, to (iii) any request for additional information on the ~~extent required by Rule 433 under~~ part of the ~~Securities Act,~~ staff of the Commission or any such authorities shall have been ~~filed~~ complied with to the ~~SEC under~~ satisfaction of the ~~Securities Act; and~~ staff of the ~~Final~~ Commission or such authorities, (iv) after the date hereof no amendment or supplement to the Registration Statement, the Prospectus or the Pricing Prospectus shall have been filed ~~with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this Agreement. b) Subsequent~~ unless a copy thereof was first submitted to the ~~execution of this Agreement~~ Representative and ~~prior to~~ the Representative do not object thereto in good faith, and (v) the Representative shall have received certificates, dated the Closing ~~Date~~Date and, ~~there shall not have occurred any material adverse change in the financial, economic or political condition of the Province from that set forth in the Registration Statement~~if later, the ~~Time of Sale Information and the Final Prospectus; and the Underwriters shall have received, on the Closing Date, a certificate dated the~~ Option Closing Date and signed by the ~~Minister of Finance~~ Chief Executive Officer and the Chief Financial Officer of the ~~Province~~Company (who may, as to proceedings threatened, rely upon the ~~Deputy Minister~~ best of ~~Finance~~ their information and belief), to the effect of clauses (i), (ii) and (iii) of this paragraph. (c) Since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the ~~Province~~ Company and its Subsidiaries, taken as a whole, whether or ~~another officer~~ not arising from transactions in the ordinary course of business, in each case other than as described in or contemplated by the Registration Statement and the Pricing Prospectus, and (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not described in the Registration Statement and the Pricing Prospectus, if in the judgment of the ~~Ministry~~ Representative any such development makes it impracticable or inadvisable to consummate the sale and delivery of ~~Finance~~ the Shares by the Underwriters at the initial public offering price. (d) Since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there shall have been no litigation or other proceeding instituted against the Company, any of its Subsidiaries, or any of its or their officers or directors in their capacities as such, before or by any federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceeding an unfavorable ruling, decision or finding would, in the judgment of the Representative, have a Material Adverse Effect or if, in the judgment of the Representative, any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price. (e) Each of the representations and warranties of the Company contained herein shall be true and correct in all respects (in the case of any representation and warranty containing a materiality or Material Adverse Effect qualification) or in all material respects at the Closing Date and, with respect to the Option Shares, at the Option Closing Date, and all covenants and agreements contained herein to be performed on the part of the Company and all conditions contained herein to be fulfilled or complied with by the Company at or prior to the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with. (f) Xxxxx Xxxx LLP have furnished to the Representative such counsel’s written opinion and negative assurances statement, as counsel to the Company, addressed to the Underwriters and dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), in form and substance reasonably satisfactory to the ~~Representatives to the effect set forth in the first clause of this Section 9(b)~~Representative. c(g) The Underwriters shall have received an from Proskauer Rose LLP, counsel for the Underwriters, such opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or ~~another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Province~~opinions and negative assurances statement, dated the Closing Date and any Option Closing Date (if such date is other than the Closing Date), ~~to the effect that under the laws of British Columbia and Canada and subject~~ with respect to such ~~qualifications~~ matters as the Representative may reasonably require, and ~~based on~~ the Company shall have furnished to such ~~assumptions~~ counsel such documents as ~~are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority~~ they request for enabling them to ~~execute and deliver this Agreement and to issue and sell the Securities~~pass upon such matters. (iih) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance Concurrently with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this ~~Agreement and the Fiscal Agency~~ Agreement, the ~~issuance~~ Accountants shall have furnished to the Representative a letter stating the conclusions and findings of such firm, of the ~~Securities~~ type ordinarily included in accountants’ “comfort letters” to underwriters, dated the date of its delivery, addressed to the Representative and in form and substance satisfactory to the Representative, confirming that they are independent accountants with respect to the Company and its Subsidiaries as required by the Act and the ~~performance~~ Exchange Act and the Rules and Regulations and with respect to certain financial and other statistical and numerical information contained or incorporated by reference in the ~~Province~~ Registration Statement. At the Closing Date and, as to the Option Shares, the Option Closing Date, the Accountants shall have furnished to the Representative a letter, dated the date of its ~~obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against~~ delivery, which shall confirm, on the ~~Province in the Supreme Court~~ basis of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought a review in accordance with the ~~Crown Proceeding Act~~ procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (~~British Columbia~~specified in the letter) ~~and within applicable limitation periods, whether or~~ not ~~a party~~ more than three days prior to the ~~proceedings or~~ Closing Date and the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated the Option Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, ~~Canadian counsel~~ which would require any change in their letter dated the date hereof if it were required to be dated and delivered at the Closing Date and the Option Closing Date. (i) At the Closing Date and, as to the ~~Province~~Option Shares, is the Option Closing Date, there shall be furnished to the Representative a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to ~~them and they believe that~~ the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinionRepresentative, to the effect that: (i) ~~The Securities are exempted securities~~ Each signer of such certificate has carefully examined the Registration Statement, the Prospectus and the General Disclosure Package (including any documents filed under the ~~Trust Indenture~~ Exchange Act ~~of 1939, as amended (~~and deemed to be incorporated by reference into the ~~“Trust Indenture Act”),~~ Pricing Prospectus and ~~no qualification of an indenture in respect of~~ the ~~Securities under the Trust Indenture Act is required for the issuance, sale~~ Prospectus) and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) ~~the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment),~~ as of the date of ~~this Agreement~~such certificate, ~~contained an untrue statement of a~~ such documents are true and correct in all material ~~fact or omitted~~ respects and do not omit to state a material fact required to be stated therein or necessary in order to make the statements therein not ~~misleading;~~ untrue or misleading and (B) in the ~~Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as~~ case of the ~~Time~~ certificate delivered at the Closing Date and the Option Closing Date, since the Effective Date no event has occurred as a result of ~~Sale, contained an untrue statement of a material fact~~ which it is necessary to amend or ~~omitted to state a material fact necessary~~ supplement the Prospectus in order to make the statements ~~therein, in the light of the circumstances under which they were made,~~ therein not untrue or misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f(ii) ~~The Underwriters shall have received an opinion~~ Each of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of the ~~Province~~ Company contained in this Agreement ~~are~~ were, when originally made, and are, at the time such certificate is delivered, true and correct~~, that~~ . (iii) Each of the ~~Province has complied with all agreements and satisfied all conditions on its part~~ covenants required to be performed by the Company herein on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be satisfied at or fulfilled on or prior to the date of such certificate has been duly, timely and fully satisfied or fulfilled. (j) On or prior to the Closing Date, ~~that no~~ the Representative shall have received the executed agreements referred to in Section 4(n). (k) The Shares shall be qualified for sale in such jurisdictions as the Representative may reasonably request and each such qualification shall be in effect and not subject to any stop order ~~suspending~~ or other proceeding on the ~~effectiveness~~ Closing Date or the Option Closing Date. (l) Prior to the Closing Date, the Company will use its best efforts to list, subject to notice of issuance, the Shares on the NGM, and effect and maintain the listing of the ~~Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by~~ Shares on the ~~SEC~~NGM thereafter. i(m) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province Company shall have furnished to the ~~Underwriters and~~ Representative such certificates, in addition to ~~counsel for the Underwriters such further certificates and documents~~ those specifically mentioned herein, as the ~~Representatives and such counsel~~ Representative may have reasonably ~~request. k) Subsequent~~ requested as to the ~~execution of this Agreement~~ accuracy and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The Province will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or completeness at ~~any time prior to,~~ the Closing Date and the Option Closing Date of any statement in the Registration Statement or the Prospectus, as to the accuracy at the Closing Date and the Option Closing Date of the representations and warranties of the Company herein, as to the performance by the ~~Representatives on behalf~~ Company of its obligations hereunder, or as to the fulfillment of the ~~Underwriters, without any liability on the part of any Underwriter~~ conditions concurrent and precedent to the ~~Province or~~ obligations hereunder of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this AgreementRepresentative.

Appears in 1 contract

Samples: Underwriting Agreement (Netlist Inc)

Conditions of the Obligations of the Underwriters. The ~~respective~~ several obligations of the ~~several~~ Underwriters to purchase and pay for the ~~Securities~~ Notes will be subject to the accuracy of the representations and warranties ~~on the part of the Province~~ made herein~~, to the accuracy of the statements of the representatives of the Province made pursuant to the provisions hereof~~, to the performance by the ~~Province~~ Depositor and Verizon Wireless of ~~its~~ their obligations ~~hereunder and with regard to the Securities~~ hereunder, and to the following additional conditions precedent: (a) ~~Prior~~ On the Closing Date, each of the Transaction Documents shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully conformed copy of the Notes and Certificates, and the Notes shall have been duly executed and delivered by the Trust and duly authenticated by the Indenture Trustee. The Transaction Documents shall be substantially in the forms heretofore provided to the Representatives. (b) On or before the Closing Date, the Underwriters shall have received the Accountant’s Due Diligence Report and letters, dated as of the date of the Preliminary Prospectus and Prospectus, respectively, of the Accounting Firm, substantially in the form of the drafts to which the Representatives have agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Underwriters and counsel to the Underwriters. (c) The Prospectus and any supplements thereto shall have been filed (if required) with the Commission in accordance with the Rules and Regulations; and, before the Closing Date, no stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Province~~ Depositor or the ~~Representatives~~Underwriters, shall be contemplated by the ~~SEC; and each Issuer Free Writing Prospectus, to~~ Commission or by any authority administering any state securities or blue sky law. (d) Since the ~~extent required by Rule 433 under~~ respective dates as of which information is given in the ~~Securities Act, shall have been filed with the SEC under the Securities Act;~~ Preliminary Prospectus and the ~~Final~~ Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this Agreement. b) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have ~~occurred~~ been (i) any material adverse change in the ~~financial~~business, ~~economic~~ business prospects, properties, financial condition, or ~~political condition~~ results of operations of Verizon Wireless and its subsidiaries, including the ~~Province from that~~ Depositor and the Trust, taken as a whole, or (ii) any development involving a prospective material adverse change in or affecting the Receivables or the servicing or origination business of Verizon Wireless, in each case other than as set forth or contemplated in the ~~Registration Statement, the Time of Sale Information~~ Preliminary Prospectus and the ~~Final~~ Prospectus; and the Underwriters shall have received, on the Closing Date, a certificate dated the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth in the first clause of this Section 9(b). c(e) The Underwriters shall have received an opinion or opinions of in-house counsel to the ~~Attorney General~~ Depositor and Verizon Wireless, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (f) The Underwriters shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the ~~Province~~Depositor, Verizon Wireless and the ~~Deputy Attorney General of the Province~~Trust, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory addressed to the Representatives, ~~as Canadian~~ dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the ~~Province~~Underwriters, addressing (i) corporate, enforceability and securities law matters, (ii) the enforceability of the Notes, (iii) certain true sale and nonconsolidation bankruptcy matters, (iv) bankruptcy proceedings of Verizon Wireless with respect to preference matters, (v) bankruptcy proceedings of Verizon Wireless and the impact of Annual Upgrade Offers, (vi) certain security interest matters and (vii) certain United States federal income tax matters. (g) The Underwriters shall have received one or more negative assurance letters of Xxxxxx Xxxxx & Xxxxxxx LLP, counsel to the Trust, the Depositor and Verizon Wireless, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (h) The Underwriters shall have received an opinion or opinions, addressed to the Underwriters, of Xxxxxxxx, Xxxxxx & Xxxxxx, P.A., counsel to the Indenture Trustee, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (i) The Underwriters shall have received an opinion or opinions, addressed to the Underwriters, of Xxxxxx Xxxxx LLP, counsel to the Owner Trustee, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (j) The Underwriters shall have received an opinion or opinions, addressed to the Underwriters, of Xxxxxx Xxxxx XXX, special Delaware counsel for the Trust, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (k) The Underwriters shall have received an opinion or opinions, addressed to the Underwriters, of Xxxxxx Xxxxx XXX, special Delaware counsel to the Depositor, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (l) The Underwriters shall have received an opinion or opinions, addressed to the Underwriters, of Xxxxxx Xxxxx XXX, special Delaware counsel to the Master Trust, dated as of the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (m) The Underwriters shall have received an opinion or opinions, addressed to the Underwriters, of Bass, Xxxxx & Xxxx PLC, counsel to the Asset Representations Reviewer, dated the Closing Date, and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (n) The Underwriters shall have received one or more negative assurance letters of Xxxxx Xxxxx LLP, counsel for the Underwriters, addressed to the Underwriters. (o) The Underwriters shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Underwriters, dated the Closing Date, to the effect that ~~under~~ the ~~laws~~ Representatives and the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securitiesits date. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. dp) The Underwriters shall have received ~~an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada,~~ certificates dated the Closing ~~Date, as to the matters specified in subdivisions (i) through (vii)~~ Date of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) any one of the ~~Minister of Finance~~ President, Chief Financial Officer, any Vice President, the Controller, the Treasurer or Assistant Treasurer of the ~~Province, the Deputy Minister of Finance of the Province or another~~ Depositor and Verizon Wireless in which such officer ~~of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion~~ shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion, to the effect that: (i) The Securities are exempted securities under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that : (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of made by such entity contained in the ~~Province in~~ Transaction Documents and this Agreement are true and ~~correct~~correct in all material respects (except to the extent any such representation or warranty is already qualified by materiality, in which case such representation or warranty is true and correct in all respects), that ~~the Province~~ such party has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at under such agreements on or ~~prior~~ before the Closing Date in all material respects (except to the extent any such agreement or condition is already qualified by materiality, in which case such agreement or condition has been complied with or satisfied, as applicable, in all respects), (B) since the date of this Agreement there has not occurred (i) any material adverse change in the business, business prospects, properties, financial condition or results of operations of the Trust, the Depositor or Verizon Wireless or (ii) to the best of such officer’s knowledge, any development involving a prospective material adverse change in or affecting the Receivables or the servicing or origination business of Verizon Wireless, in each case except as disclosed to the Representatives in writing and (C) there are no actions, proceedings or investigations to which the Depositor or Verizon Wireless is a party or that are, to such party’s knowledge after due inquiry, threatened before any court, administrative agency or other tribunal having jurisdiction over Verizon Wireless or the Depositor, (i) asserting the invalidity of this Agreement, any Transaction Document or the Notes, (ii) seeking to prevent the issuance of the Notes or the consummation of any of the transactions contemplated by this Agreement or the Transaction Documents, (iii) which would reasonably be expected to have a Material Adverse Effect or (iv) seeking adversely to affect the federal income tax attributes of the Notes as described in the Prospectus or the Preliminary Prospectus under the heading “Tax Consequences.” (q) The Representatives shall have received evidence satisfactory to the Representatives and counsel to the Underwriters that, on or before the Closing Date, ~~that no stop order suspending~~ UCC-1 financing statements, have been or are being filed in all applicable governmental offices reflecting (A) the ~~effectiveness~~ transfer of the ~~Registration Statement has been issued~~ interest of the Originators in the related Receivables, and ~~no proceedings for that purpose~~ the proceeds thereof to the Depositor pursuant to the Originator Receivables Transfer Agreement, (B) the transfer of the interest of the Master Trust in the related Receivables and the proceeds thereof to the Depositor pursuant to the Master Trust Receivables Transfer Agreement, (C) the transfer of the interest of the Depositor in the Originator Receivables Transfer Agreement, the Master Trust Receivables Transfer Agreement, the Receivables and the proceeds thereof to the Trust pursuant to the Transfer and Servicing Agreement, and (D) the grant by the Trust to the Indenture Trustee under the Indenture of a security interest in the interest of the Trust in the Transfer and Servicing Agreement, the Receivables and the proceeds thereof. (r) The Class A-1a Notes shall have been ~~instituted or are contemplated~~ rated at least AAA (sf) by ~~the SEC~~S&P Global Ratings (“S&P”), at least AAA sf by Fitch Ratings, Inc. (“Fitch”) and at least Aaa (sf) by Xxxxx’x Investors Service, Inc. (“Moody’s”). The Class A-1b Notes shall have been rated at least AAA (sf) by S&P, at least AAA sf by Fitch and at least Aaa (sf) by Moody’s. The Class B Notes shall have been rated at least AA+ (sf) by S&P, at least AA sf by Fitch and at least Aa1 (sf) by Moody’s. The Class C Notes shall have been rated at least A+ (sf) by S&P, at least A sf by Fitch and at least Aa3 (sf) by Moody’s. (s) The Underwriters shall have received, from each of Verizon Wireless, Verizon, the Originators and the Depositor, a certificate executed by a secretary or assistant secretary thereof (or the equivalent) to which shall be attached certified copies of the: (i) formation and governing documents, (ii) applicable resolutions and (iii) designation of incumbency of each such entity. The ~~purchase and sale~~ Underwriters shall have received, from the Trust, a certified copy of the ~~Securities in accordance with~~ certificate of formation and an executed copy of the ~~provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority~~ trust agreement evidencing formation of ~~Canada,~~ the ~~United States of America, the Province or the State of New York~~trust. j(t) The ~~Province~~ Representatives shall have ~~furnished~~ received evidence of any required Lien releases to be filed or recorded (immediately following the Closing Date) with respect to the ~~Underwriters~~ Permitted Liens affecting the Receivables from all applicable creditors of Verizon Wireless, in form and substance satisfactory to ~~counsel for the Underwriters such further certificates and documents as~~ the Representatives and ~~such~~ counsel ~~reasonably request~~to the Underwriters. k(u) ~~Subsequent~~ All representations and warranties made by or on behalf of Verizon Wireless and the Depositor in the Transaction Documents to which each is a party are true and correct in all material respects as of the Closing Date. (v) The Underwriters shall have received an opinion of Xxxxx Xxxxx LLP, special counsel to the ~~execution~~ Cap Counterparty, addressed to the Representatives, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters, addressing the enforceability of ~~this Agreement and prior to~~ the Cap Agreement. (w) The Representatives shall have received a certificate, dated the Closing Date, ~~there shall not have occurred~~ signed by an authorized officer or any ~~downgrading, nor shall any notice have been given~~ Vice President of ~~any intended or potential downgrading or of any placing on credit watch with negative implications~~the Indenture Trustee, in which such officer shall state that the ~~ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency~~ information contained in the ~~United States. All such opinions, certificates, letters~~ Form T-1 for the Indenture Trustee is true and ~~documents will be in compliance~~ accurate as of its filing with the ~~provisions hereof only if they are reasonably satisfactory~~ Commission. The Depositor will provide or cause to be provided to the ~~Representatives. The Province will furnish the~~ Underwriters ~~with such~~ conformed copies of such opinions, certificates, letters and documents as the ~~Representatives~~ Underwriters or counsel to the Underwriters reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.

Appears in 1 contract

Samples: Underwriting Agreement (Vzot 2018-A)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the several Underwriters to purchase and pay for the Offered Securities will be subject to the accuracy of the representations and warranties on the part of the ~~Province~~ Company herein, to the accuracy of the statements of ~~the representatives~~ officers of the ~~Province~~ Company made pursuant to the provisions hereof, to the performance by the ~~Province~~ Company of its obligations hereunder ~~and with regard to the Securities~~ and to the following additional conditions precedent: (a) ~~Prior~~ The Prospectus as amended or supplemented in relation to the ~~Closing Date~~applicable Offered Securities shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing (without reliance on Rule 424(b)(8)) by the Rules and Regulations and in accordance with Section 5(a) hereof; if the Company has elected to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall have become effective by 10:00 P.M., Washington, D.C. time, on the date hereof; no stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement or any part thereof shall have been issued and no ~~proceedings~~ proceeding for that purpose shall have been ~~instituted or,~~ initiated or to the knowledge of the ~~Province or the Representatives, shall be contemplated~~ Company threatened by the ~~SEC~~Commission; and ~~each Issuer Free Writing Prospectus~~all requests for additional information on the part of the Commission shall have been complied with. (i) On the date hereof, Deloitte & Touche LLP shall have furnished to the ~~extent required by Rule 433 under~~ Underwriters a letter, dated as of the date hereof, in form and substance satisfactory to the Underwriters, confirming that they are an independent registered public accounting firm with respect to the Company and its subsidiaries within the meaning of the Securities Act, ~~shall have been filed~~ the Exchange Act and the applicable published Rules and Regulations and stating that as of the Applicable Time (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Preliminary Prospectus as of a particular time not more than five business days prior to the Applicable Time) conclusions and findings of such firm, to the effect that: (A) in their opinion the financial statements examined by them and incorporated by reference in the Preliminary Prospectus comply as to form in all material respects with the ~~SEC under~~ applicable accounting requirements of the Securities Act; , the Exchange Act and the ~~Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time,~~ related published Rules and Regulations; (B) on the ~~second~~ basis of a reading of the latest available interim financial statements of the Company, inquiries of officials of the Company who have responsibility for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that: (1) at the date of the latest available balance sheet read by such accountants, or at a subsequent specified date not more than one business day ~~following~~ prior to the date of this Agreement~~. b) Subsequent to the execution of this Agreement and prior to the Closing Date~~, there ~~shall not have occurred~~ was any ~~material adverse~~ change in the ~~financial, economic~~ capital stock or ~~political condition~~ any increase in short-term indebtedness or long-term debt of the ~~Province from that set forth~~ Company and its consolidated subsidiaries or, at the date of the latest available balance sheet read by such accountants, there was any decrease in total shareholders’ equity or total consolidated net current assets, as compared with amounts shown on the latest balance sheet incorporated by reference in the ~~Registration Statement~~Preliminary Prospectus; (2) for the period from the closing date of the latest statement of income incorporated by reference in the Preliminary Prospectus to the closing date of the latest statement of income read by such accountants, there were any decreases, as compared with the ~~Time~~ corresponding period of ~~Sale Information~~ the previous year, in consolidated revenue or net income; (3) at [April 30], 2013, there was any change in the capital stock, any increases in short-term indebtedness or long-term debt, or any decreases in net current assets or total shareholder’s equity, of the Company and its consolidated subsidiaries, in each case as compared with amounts shown on the ~~Final~~ latest balance sheet incorporated by reference in the Preliminary Prospectus; or (4) for the period from March 31, 2013 to [April 30], 2013, there were any decreases, as compared with the corresponding period in the preceding year, in consolidated revenue or net income; and (C) they have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the ~~Underwriters shall have received~~Preliminary Prospectus (in each case to the extent that such dollar amounts, on percentages and other financial information are derived from the ~~Closing Date~~general accounting records of the Company and its subsidiaries subject to the internal controls of the Company’s accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a ~~certificate dated the Closing Date~~ reading of such general accounting records and ~~signed by the Minister of Finance of the Province~~other procedures specified in such letter and have found such dollar amounts, ~~the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory~~ percentages and other financial information to ~~the Representatives to the effect set forth~~ be in ~~the first clause of this Section 9(b)~~agreement with such results, except as otherwise specified in such letter. c(ii) The Underwriters shall have received ~~an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province,~~ a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Provinceletter, dated the Closing Date, of Deloitte & Touche LLP which meets the requirements of subsection (b)(i) of this Section, except that (A) the specified date referred to in such subsection will be a date not more than one business day prior to the ~~effect that under~~ Closing Date for the ~~laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion~~ purposes of this ~~type:~~subsection, and (B) references to the Preliminary Prospectus will be replaced with references to the Prospectus. (c) Subsequent to the Applicable Time, there shall not have been (i) ~~The Province~~ any change, or any development or event involving a prospective change, in the financial condition, business, properties or results of operations of the Company and its subsidiaries taken as a whole, which, in the judgment of the Representatives, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Securities; (ii) any downgrading in the rating of any debt securities or preferred stock of the Company by any “nationally recognized statistical rating organization” (as such term is defined in Section 3 of the Exchange Act), or any public announcement that any such organization has ~~full power~~ under surveillance or review its rating of any debt securities or preferred stock of the Company (other than an announcement with positive implications of a possible upgrading, and ~~authority~~ no implication of a possible downgrading, of such rating); (iii) any material 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; (iv) any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (v) any banking moratorium declared by U.S. Federal or New York authorities; (vi) any material disruption in settlements of securities or clearance services in the United States; or (vii) any attack on, or outbreak or escalation of hostilities or act of terrorism involving, the United States, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of the Representatives, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to ~~execute~~ proceed with completion of the offering or sale of and ~~deliver this Agreement and to issue and sell~~ payment for the Offered Securities. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an ~~opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada~~opinion, dated the Closing Date, ~~as to the matters specified in subdivisions (i) through (vii)~~ of ~~paragraph (c) of this Section 9~~Xxxx X. Xxxxxx, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) General Counsel of the ~~Minister~~ Company, substantially in the form of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereonExhibit A hereto. (e) The Underwriters shall have received ~~the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province~~an opinion, dated the Closing Date, ~~subject to such qualifications and based upon such assumptions as are customary in the United States in respect~~ of ~~such opinion~~Xxxxxxx Coie LLP, special counsel to the ~~effect that: (i) The Securities are exempted securities under~~ Company, in substantially the ~~Trust Indenture Act~~ form of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the SecuritiesExhibit B hereto. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received ~~an opinion of Linklaters~~ from Xxxxxx & Xxxxxxx LLP, ~~United Kingdom~~ counsel for the ~~Province~~Underwriters, such opinion or opinions, dated the Closing Date, ~~subject~~ in form and substance satisfactory to the Underwriters, and the Company shall have furnished to such ~~qualifications and based~~ counsel such documents as they request for the purpose of enabling them to pass upon such ~~assumptions as are customary in the United Kingdom in respect of~~ matters. In rendering such opinion, Xxxxxx & Xxxxxxx LLP may rely as to the ~~effect that~~ incorporation of the ~~statements in~~ Company and all other matters governed by Oregon law upon the ~~Time~~ opinion of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters Xxxxxxx Coie LLP referred to ~~therein, fairly summarize in all material respects the legal matters referred to therein~~above. (g) The Underwriters shall have received ~~an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters~~a certificate, dated the Closing Date, ~~as to the matters specified in subdivisions (i), and (iv) (but only as~~ of the ~~date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications~~ President or any Vice President and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a ~~certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province~~ principal financial or ~~another~~ accounting officer of the ~~Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date,~~ Company in which such ~~Minister, Deputy Minister or other officer, as the case may be~~officers, to the best of ~~his or her~~ their knowledge after reasonable investigation, shall state ~~that~~ that: (i) the representations and warranties of the ~~Province~~ Company in this Agreement are true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect; (ii) that the ~~Province~~ Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and (iii) that, ~~that no stop order suspending~~ subsequent to the ~~effectiveness~~ date of the ~~Registration Statement~~ most recent financial statements in, or incorporated by reference in, the Preliminary Prospectus, there has been ~~issued and~~ no proceedings for that purpose have been instituted or are contemplated by the SEC. i) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province shall have furnished to the Underwriters and to counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. k) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any downgradingmaterial adverse change, nor ~~shall~~ any ~~notice have been given of any intended~~ development or ~~potential downgrading or of any placing on credit watch with negative implications~~event involving a prospective material adverse change, in the ~~ratings accorded the debt securities~~ financial condition, business or results of operations of the ~~Province by any nationally recognized statistical rating agency~~ Company and its subsidiaries taken as a whole except as set forth in the ~~United States. All~~ Disclosure Package and the Prospectus or as described in such ~~opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives~~certificate. The ~~Province~~ Company will (i) furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the ~~Representatives~~ Underwriters reasonably request. If The Underwriters may waive compliance with any ~~of the above~~ conditions ~~shall not have been fulfilled as reasonably contemplated herein, this Agreement and all~~ to their obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreementhereunder.

Appears in 1 contract

Samples: Underwriting Agreement

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the several Underwriters to purchase and pay for the Securities will be subject to the accuracy of the representations and warranties by or on ~~the part~~ behalf of the ~~Province~~ Company herein~~, to the accuracy of the statements of the representatives of the Province made pursuant to the provisions hereof~~, to the performance by the ~~Province~~ Company of its obligations hereunder ~~and with regard to the Securities~~ and to the following additional conditions precedent: (a) ~~Prior~~ At or prior to the execution of this Agreement and on the Closing Date, the Representatives shall have received a letter, dated the date of delivery thereof and any later date on which Option Securities are purchased, of KPMG LLP, addressed to the Underwriters and the Board of Directors of the Company, with respect to the financial statements and certain financial information contained or referred to in the Registration Statement, Pricing Disclosure Package and the Prospectus, as applicable. Such letter shall be in form and substance reasonably satisfactory to the Representatives. (b) The Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 5(a) of this Agreement; the final term sheet contemplated by Section 5(b) of this Agreement, and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement or of any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Province~~ Company or ~~the Representatives~~any Underwriter, shall be contemplated by the ~~SEC~~Commission; and ~~each~~ no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing ~~Prospectus, to the extent required by Rule 433 under the Securities Act, shall have been filed with the SEC under the Securities Act; and the Final~~ Prospectus shall have been ~~filed with~~ initiated or threatened by the ~~SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this Agreement~~Commission. b(c) Subsequent to the execution of this ~~Agreement and prior to the Closing Date~~Agreement, there shall not have occurred (i) any change, or any development that would reasonably be expected to result in a change, in or affecting the business, financial condition, results of operations or stockholder’s equity of the Company and its subsidiaries, taken as a whole, which, in the judgment of the Representatives, is so material and adverse as to make it impracticable or inadvisable to proceed with the Offering or the delivery of the Securities being delivered at such Closing Date on the terms and in the manner contemplated in the Prospectus; (ii) any downgrading, or placement on any watch list for possible downgrading, in the rating of the Company’s debt securities by any of Standard & Poor’s Corporation or Xxxxx’x Investors Services, Inc.; (iii) any suspension 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 Company on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by Federal or New York authorities; or (v)(A) any outbreak or escalation of major hostilities or acts of terrorism in which the United States is involved, any declaration of war by the United States Congress or (B) any other substantial national or international calamity or emergency, or any substantial change in political, financial or economic conditions or currency exchange rates or exchange controls if the ~~financial~~effect of any such event in clause (A) or (B) of this sentence, ~~economic or political condition~~ in the judgment of the ~~Province from that set forth in~~ Representatives, makes it impractical or inadvisable to market the ~~Registration Statement,~~ Securities or proceed with completion of the ~~Time~~ sale of ~~Sale Information~~ and payment for the ~~Final Prospectus; and the Underwriters~~ Securities. (d) The Representatives shall have ~~received~~received an opinion and negative assurance letter, on dated the Closing Date, ~~a certificate dated~~ from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, the counsel for the Company, and if Option Securities are purchased at any date after the Closing Date as specified in Section 3, an additional opinion and ~~signed by~~ negative assurance letter from such counsel, addressed to the ~~Minister of Finance~~ Underwriters and dated such later date, confirming that the statements expressed as of the ~~Province, the Deputy Minister~~ Closing Date in such opinions remain valid as of ~~Finance of the Province or another officer of the Ministry of Finance~~ such later date; such opinions and letters shall be in form and substance reasonably satisfactory to the ~~Representatives~~ Underwriters, substantially to the effect set forth in ~~the first clause of this Section 9(b)~~Schedule III hereto. c(e) The ~~Underwriters~~ Representatives shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Provinceopinion, dated the Closing Date, from Xxxxx Xxxxxx Xxxxxxxx, General Counsel for the Company, in form and substance reasonably acceptable to the ~~effect~~ Representatives, and if Option Securities are purchased at any date after the Closing Date as specified in Section 3, additional opinions from such counsel, addressed to the Underwriters and dated such later date, confirming that ~~under~~ the ~~laws of British Columbia and Canada and subject to such qualifications and based on such assumptions~~ statements expressed as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the ~~Province, except~~ Closing Date in such opinions remain valid as ~~rights to indemnity~~ of such later date; such opinions shall be in form and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel substance reasonably satisfactory to the Underwriters, ~~given in respect of the laws of British Columbia and Canada, dated the Closing Date, as~~ substantially to the ~~matters specified~~ effect set forth in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereonSchedule IV hereto. e(f) The ~~Underwriters~~ Representatives shall have received ~~the opinion of Sxxxxxxx~~ from Xxxxxx & ~~Sterling~~ Xxxxxxx LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion, to the effect that: (i) The Securities are exempted securities under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, ~~dated the Closing Date, as~~ an opinion in form and substance reasonably acceptable to the ~~matters specified in subdivisions (i)~~Representatives, and ~~(iv) (but only as of~~ the ~~date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject~~ Company shall have furnished to such ~~qualifications and based~~ counsel such documents as they request for the purpose of enabling them to pass upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedurematters. h(g) The ~~Underwriters~~ Representatives shall have received a ~~certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives~~certificate, dated the Closing ~~Date~~Date and on any later date on which Option Securities are purchased, of the Chairman of the Board, the Vice Chairman of the Board, the Chief Executive Officer, the President or any Vice President and a principal financial or accounting officer of the Company in which such ~~Minister, Deputy Minister or other officer, as the case may be~~officers, to the best of ~~his or her~~ their knowledge after reasonable investigation, shall state that the representations and warranties of the ~~Province~~ Company in this Agreement are true and correct, that the ~~Province~~ Company has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, that 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 the Company’s knowledge, are threatened by the Commission and that, 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 ~~are~~ results of operations of the Company and its subsidiaries except as set forth in or contemplated by the ~~SEC. i) The purchase and sale of the Securities~~ Prospectus or as described in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province shall have furnished to the Underwriters and to counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. k) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representativescertificate. The ~~Province~~ Company will furnish the ~~Underwriters~~ Representatives with such conformed copies of such opinions, certificates, letters and documents as ~~the Representatives~~ they reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.

Appears in 1 contract

Samples: Underwriting Agreement (Unisys Corp)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the several Underwriters to purchase and pay for the Securities will be subject to the accuracy of the representations and warranties on the part of the ~~Province herein~~Company herein on and as of the Time of Sale and on and as of the Closing Date as if made on the Closing Date, to the accuracy of the statements of ~~the representatives of the Province~~ Company officers made pursuant to the provisions hereof, to the performance by the ~~Province~~ Company of its obligations hereunder ~~and with regard to the Securities~~ and to the following additional conditions precedent: (a) ~~Prior~~ The Representative shall have received a letter, dated as of the date of this Agreement, of PricewaterhouseCoopers LLP, in form and substance satisfactory to the ~~Closing Date~~Representative, no containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements of the Company and its subsidiaries included or incorporated by reference in the Registration Statement. (b) The Prospectus and each Issuer Free Writing Prospectus (if required by Rule 433 under the Act) shall have been filed with the Commission in accordance with the Rules and Regulations and Section 4(a) of this Agreement. No stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement or of any parts thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Act shall have been instituted or, to the knowledge of the ~~Province~~ Company or ~~the Representatives~~any Underwriter, shall be contemplated by the SEC; and each Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act, shall have been filed with the SEC under the Securities Act; and the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this AgreementCommission. b(c) Subsequent to the earlier of (A) the Time of Sale and (B) the execution of this ~~Agreement and prior to the Closing Date~~Agreement, there shall not have occurred (i) any ~~material adverse change~~ change, or any development or event involving a prospective change, in or affecting particularly the business or properties of the Company, or its subsidiaries which, in the ~~financial, economic or political condition~~ judgment of the ~~Province~~ Representative, materially impairs the investment quality of the Securities; (ii) any downgrading in the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange 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); (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or the setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Company on such 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 that, in the reasonable judgment of the Representative, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Securities. (d) The Representative shall have received an opinion or opinions, dated the Closing Date, of K&L Gates LLP, in form and substance reasonably satisfactory to the Representative. (e) The Representative shall have received an opinion and 10b-5 statement, each dated the Closing Date, of Cxxxxx Xxxxxxxx Xxxxx & Hxxxxxxx LLP, counsel for the Company, in form and substance reasonably satisfactory to the Representative. (f) The Representative shall have received from ~~that set forth in~~ Cravath, Swaine & Mxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 statement, each dated the Closing Date, with respect to the incorporation of the Company, the validity of the Securities, the Registration Statement, the Time of Sale ~~Information~~ Information, the Prospectus and other related matters as they may require, and the ~~Final Prospectus; and the Underwriters~~ Company shall have ~~received~~furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. In rendering such opinion, on Cravath, Swaine & Mxxxx LLP may rely as to matters governed by Pennsylvania law, upon the Closing Date, a certificate dated the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory opinions referred to ~~the Representatives to the effect set forth~~ in ~~the first clause~~ subsections (d) of this ~~Section 9(b)~~Section. c(g) The ~~Underwriters~~ Representative shall have received ~~an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province,~~ a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Provincecertificate, dated the Closing Date, to the effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations Chairman of the ~~Province in accordance with their respective terms~~ Board, President or any Vice-President and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official a principal financial or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated the Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another accounting officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion, to the effect that: (i) The Securities are exempted securities under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, Company in which such ~~Minister, Deputy Minister or other officer, as the case may be~~officers, to the best of ~~his or her~~ their knowledge after reasonable investigation, shall state that the representations and warranties of the ~~Province~~ Company in this Agreement are true and correct, that the ~~Province~~ Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, that no stop order suspending the effectiveness of the Registration Statement or of any parts thereof has been issued and no proceedings for that purpose or pursuant to Section 8A of the Act have been instituted or are contemplated by the ~~SEC~~Commission and that, 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 the Company and its subsidiaries considered in the aggregate, except as set forth in or contemplated by the Time of Sale Information and the Prospectus. i(h) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province Representative shall have ~~furnished to~~ received a certificate, dated the ~~Underwriters~~ date hereof and ~~to counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. k) Subsequent to the execution of this Agreement and prior to~~ the Closing Date, ~~there shall not have occurred any downgrading, nor shall any notice have been given~~ of ~~any intended or potential downgrading or~~ the chief financial officer of ~~any placing on credit watch~~ the Company with ~~negative implications~~respect to certain financial data contained in the Time of Sale Information and the Prospectus, in ~~the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters~~ form and ~~documents will be in compliance with the provisions hereof only if they are~~ substance reasonably satisfactory to the ~~Representatives~~Representative. (i) The Representative shall have received a letter, dated the Closing Date, of PricewaterhouseCoopers LLP, in form and substance satisfactory to the Underwriters, which reconfirms the matters set forth in their letter delivered pursuant to subsection (a) of this Section and covers any additional financial information included in the Prospectus (which is not covered by their letter delivered pursuant to subsection (a) of this Section). (j) The Securities shall be eligible for clearance and settlement through DTC. The ~~Province~~ Company will furnish the ~~Underwriters~~ Representative with such conformed copies of such opinions, certificates, letters and documents ~~as the Representatives~~ they reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.

Appears in 1 contract

Samples: Underwriting Agreement (Howmet Aerospace Inc.)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of ~~the several Underwriters to purchase and pay for the Securities will be~~ each Underwriter hereunder are subject to the ~~accuracy~~ following conditions: (a) All filings required by Rule 424 and Rule 430A of the ~~representations~~ Rules and ~~warranties~~ Regulations shall have been made. If the Company has elected to rely upon Rule 462(b), the registration statement filed under Rule 462(b) shall have become effective by 10:00 p.m., Washington, D.C. time, on the ~~part~~ date of the Province herein, to the accuracy of the statements of the representatives of the Province made pursuant to the provisions hereof, to the performance by the Province of its obligations hereunder and with regard to the Securities and to the following additional conditions precedent:this Agreement. a(i) ~~Prior to the Closing Date, no~~ No stop order suspending the effectiveness of the Registration ~~Statement~~Statement or preventing or suspending the use of the Base Prospectus, ~~as amended from time to time~~any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall ~~have been instituted~~ be pending or threatened by the Commission, (ii) no order suspending the effectiveness of the Registration Statement or the qualification or registration of the Shares under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or, to the ~~knowledge of the Province~~ Company’s knowledge, threatened or ~~the Representatives, shall be~~ contemplated by the ~~SEC; and each Issuer Free Writing Prospectus~~Commission or the authorities of any such jurisdiction, to (iii) any request for additional information on the ~~extent required by Rule 433 under~~ part of the ~~Securities Act,~~ staff of the Commission or any such authorities shall have been ~~filed~~ complied with to the ~~SEC under~~ satisfaction of the ~~Securities Act; and~~ staff of the ~~Final~~ Commission or such authorities, (iv) after the date hereof no amendment or supplement to the Registration Statement, the Prospectus or the Pricing Prospectus shall have been filed ~~with~~ unless a copy thereof was first submitted to the ~~SEC pursuant~~ Representatives and the Representatives do not object thereto in good faith, and (v) the Representatives shall have received certificates dated the Closing Date and, if later, the applicable Option Closing Date and signed by the Chief Executive Officer and the Chief Financial Officer of the Company (who may, as to ~~Rule 424 not later than 5:00 p.m. New York City time~~proceedings threatened, on rely upon their information and belief), to the ~~second business day following the date~~ effect of clauses (i), (ii) and (iii) of this ~~Agreement~~paragraph. b(c) ~~Subsequent to~~ Since the ~~execution~~ respective dates as of ~~this Agreement~~ which information is given in the Registration Statement and ~~prior to~~ the ~~Closing Date~~Pricing Prospectus, (i) there shall not have ~~occurred any~~ been a material adverse change in the ~~financial~~general affairs, ~~economic~~ business, business prospects, properties, management, condition (financial or ~~political condition~~ otherwise) or results of operations of the ~~Province~~ Company or any of its subsidiaries, whether or not arising from transactions in the ordinary course of business, in each case other than as described in or contemplated by the Registration Statement and the Pricing Prospectus, and (ii) neither the Company nor any of its subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not described in the Registration Statement and the Pricing Prospectus, if in the judgment of the Representatives any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters. (d) Since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there shall have been no litigation or other proceeding instituted against (x) the Company, any of its subsidiaries, or any of their officers or directors in their capacities as such, or (y) to the Company’s knowledge, Echelon, any of Echelon’s subsidiaries, or any of Echelon’s officers or directors in their capacities as such, before or by any federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceeding an unfavorable ruling, decision or finding would, in the judgment of the Representatives, have a Company Material Adverse Effect or an Echelon Material Adverse Effect, as applicable, or if, in the judgment of the Representatives, any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters. (e) Each of the representations and warranties of the Company contained herein shall be true and correct in all respects (in the case of any representation and warranty containing a materiality, Company Material Adverse Effect or Echelon Material Adverse Effect qualification) or in all material respects (in the case of any other representation and warranty) at the Closing Date and, with respect to the Option Shares, at the applicable Option Closing Date, and all covenants and agreements contained herein to be performed on the part of the Company and all conditions contained herein to be fulfilled or complied with by the Company at or prior to the Closing Date and, with respect to the Option Shares, at the applicable Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respects. (f) The Representatives shall have received an opinion, dated the Closing Date and, with respect to the Option Shares, at the applicable Option Closing Date, satisfactory in form and substance to the Representatives and counsel for the Underwriters from Fenwick & West LLP, counsel to the Company in form and substance previously agreed to between Fenwick & West LLP and Shearman & Sterling LLP, counsel to the Underwriters. (g) The Representatives shall have received an opinion, dated the Closing Date and, with respect to the Option Shares, at the applicable Option Closing Date, from Shearman & Sterling LLP, counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be satisfactory in all respects to the Representatives. (h) Concurrently with the execution and delivery of this Agreement, BPM shall have furnished to the Representatives a letter, dated the date of its delivery, addressed to the Representatives and in form and substance satisfactory to the Representatives, confirming that ~~set forth~~ they are independent accountants with respect to the Company and its subsidiaries as required by the Act and the Exchange Act and the Rules and Regulations and with respect to certain financial and other statistical and numerical information contained or incorporated by reference in the Registration Statement, the ~~Time of Sale Information~~ Prospectus and the ~~Final Prospectus; and~~ General Disclosure Package. At the ~~Underwriters~~ Closing Date and, with respect to the Option Shares, at the applicable Option Closing Date, BPM shall have ~~received~~furnished to the Representatives a letter, dated the date of its delivery, which shall confirm, on the ~~Closing Date,~~ basis of a ~~certificate dated~~ review in accordance with the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect procedures set forth in the ~~first clause of this Section 9(b). c) The Underwriters shall have received an opinion of~~ letter from BPM, that nothing has come to their attention during the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Province, dated the Closing Date, to the effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on period from the date of ~~issue of~~ the ~~Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law~~ letter referred to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the ~~Supreme Court of British Columbia and no applicable law requires~~ prior sentence to a date (specified in the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available letter) not more than three days prior to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings Closing Date or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated the applicable Option Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, ~~Canadian counsel~~ which would require any change in their letter dated the date hereof if it were required to be dated and delivered at the Closing Date or the applicable Option Closing Date, as the case may be. (i) Concurrently with the execution and delivery of this Agreement, Armanino shall have furnished to the ~~Province~~Representatives a letter, is dated the date of its delivery, addressed to the Representatives and in form and substance satisfactory to ~~them~~ the Representatives, confirming that they are independent accountants with respect to Echelon and ~~they believe that~~ its subsidiaries as required by the Act and the Exchange Act and the Rules and Regulations and with respect to certain financial and other statistical and numerical information contained or incorporated by reference in the Registration Statement, the Prospectus and the General Disclosure Package. At the Closing Date and, with respect to the Option Shares, at the applicable Option Closing Date, Armanino shall have furnished to the Representatives ~~are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province~~a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from Armanino, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date or the applicable Option Closing Date, ~~subject~~ as the case may be, which would require any change in their letter dated the date hereof if it were required to ~~such qualifications~~ be dated and ~~based upon such assumptions~~ delivered at the Closing Date or the applicable Option Closing Date, as ~~are customary~~ the case may be. (j) At the Closing Date and, with respect to the Option Shares, at the applicable Option Closing Date, there shall be furnished to the Representatives a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to the ~~United States in respect of such opinion~~Representatives, to the effect that: (i) ~~The Securities are exempted securities~~ Each signer of such certificate has carefully examined the Registration Statement, the Prospectus and the General Disclosure Package (including any documents filed under the ~~Trust Indenture~~ Exchange Act ~~of 1939, as amended (~~and deemed to be incorporated by reference into the ~~“Trust Indenture Act”),~~ Pricing Prospectus and ~~no qualification of an indenture in respect of~~ the ~~Securities under the Trust Indenture Act is required for the issuance, sale~~ Prospectus) and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) ~~the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment),~~ as of the date of ~~this Agreement~~such certificate, ~~contained an untrue statement of a~~ such documents are true and correct in all material ~~fact or omitted~~ respects and do not omit to state a material fact required to be stated therein or necessary in order to make the statements therein not ~~misleading;~~ untrue or misleading and (B) in the ~~Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as~~ case of the ~~Time~~ certificate delivered at the Closing Date and the applicable Option Closing Date, since the Effective Date no event has occurred as a result of ~~Sale, contained an untrue statement of a material fact~~ which it is necessary to amend or ~~omitted to state a material fact necessary~~ supplement the Prospectus in order to make the statements ~~therein, in the light of the circumstances under which they were made,~~ therein not untrue or misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f(ii) ~~The Underwriters shall have received an opinion~~ Each of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of the ~~Province~~ Company contained in this Agreement ~~are~~ were, when originally made, and are, at the time such certificate is delivered, true and ~~correct~~correct in all respects (in the case of any representation and warranty containing a materiality, ~~that~~ Company Material Adverse Effect or Echelon Material Adverse Effect qualification) or in all material respects (in the ~~Province has complied with all agreements~~ case of any other representation and ~~satisfied all conditions on its part~~ warranty). (iii) Each of the covenants required to be performed by the Company herein on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be satisfied at or fulfilled on or prior to the date of such certificate has been duly, timely and fully satisfied or fulfilled. (k) On or prior to the Closing Date, ~~that no~~ the Representatives shall have received the executed agreements referred to in Section 4(n). (l) The Shares shall be qualified for sale in such jurisdictions as the Representatives may reasonably request and each such qualification shall be in effect and not subject to any stop order ~~suspending~~ or other proceeding on the ~~effectiveness of~~ Closing Date or the ~~Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the SEC~~applicable Option Closing Date. i(m) Prior to the Closing Date, the Company shall have filed a notice of listing of additional shares with respect to the Shares with the NCM and the NCM shall not have objected to such listing. (n) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province Company shall have furnished to the ~~Underwriters and~~ Representatives such certificates, in addition to ~~counsel for the Underwriters such further certificates and documents~~ those specifically mentioned herein, as the Representatives ~~and such counsel~~ may have reasonably ~~request. k) Subsequent~~ requested as to the ~~execution of this Agreement~~ accuracy and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The Province will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or completeness at ~~any time prior to,~~ the Closing Date and the applicable Option Closing Date of any statement in the Registration Statement, the Prospectus or the General Disclosure Package, as to the accuracy at the Closing Date and the applicable Option Closing Date of the representations and warranties of the Company herein, as to the performance by the ~~Representatives on behalf~~ Company of its obligations hereunder, or as to the fulfillment of the ~~Underwriters, without any liability on the part of any Underwriter~~ conditions concurrent and precedent to the ~~Province or~~ obligations hereunder of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this AgreementRepresentatives.

Appears in 1 contract

Samples: Underwriting Agreement (ADESTO TECHNOLOGIES Corp)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the several Underwriters to purchase and pay for the Securities will be subject to the accuracy of the representations and warranties on the part of the ~~Province~~ Company herein, to the accuracy of the statements of ~~the representatives of the Province~~ Company officers made pursuant to the provisions hereof, to the performance by the ~~Province~~ Company of its obligations hereunder ~~and with regard to the Securities~~ and to the following additional conditions precedent: (a) Prior to the Closing Date, no stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement shall have been issued and no proceedings for that ~~purpose~~ purpose, pursuant to Rule 401(g)(2) under the Act or pursuant to Section 8A under the Act shall have been instituted or, to the knowledge of the ~~Province~~ Company or ~~the Representatives~~you, shall be contemplated by the ~~SEC; and each Issuer Free Writing Prospectus, to~~ Commission. (b) Since the ~~extent required by Rule 433 under~~ respective dates as of which information is given in the ~~Securities Act, shall have been filed with the SEC under the Securities Act;~~ Time of Sale Information and the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this Agreement. b) Subsequent to the execution of this Agreement and prior to the Closing DateProspectus, there shall not have ~~occurred~~ been any ~~material adverse~~ change in the ~~financial, economic or political condition~~ consolidated long-term debt of the ~~Province~~ Company and its subsidiaries (other than changes resulting from the accretion of premium or amortization of debt discount on long-term debt and changes resulting from the issuance of debt securities by the Company that have occurred, and have been disclosed by the Company to the Underwriters, prior to the date hereof), any change in the capital stock of the Company (except for increases in outstanding capital stock that are not material), or any change or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, viewed as a whole, otherwise than as set forth or contemplated in the Time of Sale Information and the Prospectus, the effect of which, in any such case, is, in the judgment of a majority in interest of the Underwriters after discussion with the Company, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus. (c) You shall have received an opinion letter of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Company, or such other counsel as is acceptable to [X.X. Xxxxxx Securities LLC], including in-house counsel, dated the Closing Date, to the effect that: (i) The Company has been duly incorporated and is validly existing and in good standing as a corporation under the law of the State of Delaware, and JPMorgan Chase Bank, National Association has been duly formed and is validly existing as a national banking association under the law of the United States, in each case with full corporate power and authority to conduct its business as described in the Registration Statement, the Time of Sale Information and the ~~Final~~ Prospectus; and the Underwriters shall have received, on the Closing Date, a certificate dated the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth in the first clause of this Section 9(b). c) The Underwriters shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Province, dated the Closing Date, to the effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (ii) The Securities have been duly authorized and, upon payment and delivery in accordance with this Agreement, the Securities will be, validly issued, fully paid and nonassessable. (iii) There are no preemptive rights under federal or New York State law or under the Delaware General Corporation Law to subscribe for or purchase shares of the Securities. There are no preemptive or other rights to subscribe for or purchase any shares of the Securities pursuant to the Company’s Certificate of Incorporation or By-laws. (iv) This Agreement ~~and the Fiscal Agency Agreement have~~ has been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effectCompany. (v) ~~Proceedings may be brought against~~ The issue and sale of the ~~Province~~ Securities by the Company and the execution, delivery and performance by the Company of the Underwriting Agreement and the Securities will not breach, or result in a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument filed or incorporated by reference as an exhibit to the ~~Supreme Court~~ Registration Statement or any of ~~British Columbia and no applicable law requires~~ the ~~consent of any public official or authority for proceedings~~ Company’s reports filed pursuant to ~~be brought or judgment to be obtained against~~ the ~~Province arising out of or relating to obligations under~~ Exchange Act [TO BE IDENTIFIED IN OPINION] (collectively the ~~Securities~~“Exchange Act Documents”), nor is will such actions violate the Certificate of Incorporation or By-laws of the Company or any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether federal or ~~not a party to the proceedings~~ New York statute or the ~~holder~~ Delaware General Corporation Law or any rule or regulation that has been issued pursuant to any federal or New York statute or the Delaware General Corporation Law or any order known to us issued pursuant to any federal or New York statute or the Delaware General Corporation Law by any court or governmental agency or body having jurisdiction over the Company or any of ~~a Security is resident within British Columbia~~ its subsidiaries or ~~is a citizen~~ any of ~~Canada~~their properties. (vi) No consent, approval, authorization, order, registration or qualification of or with any federal or New York governmental agency or body or any Delaware governmental agency or body acting pursuant to the Delaware General Corporation Law or, to our knowledge, any federal or New York court or any Delaware court acting pursuant to the Delaware General Corporation Law is required for the issue and sale of the Securities by the Company, except such as have been obtained under the Act and the Exchange Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Underwriters. (vii) The statements made in the Time of Sale Information and ~~Final~~ the Prospectus under the ~~caption~~ captions “~~Description of Bonds~~[ ]” and “[ ]”, insofar as ~~such statements~~ they purport to constitute ~~a summary~~ summaries of ~~the~~ certain terms of documents referred to therein, ~~are~~ constitute accurate summaries of such documents in all material respects~~, subject to the qualifications therein stated~~. (~~vii~~viii) The ~~statements in the Time of Sale Information and Final Prospectus~~ Registration Statement has become effective under the ~~caption “Tax Matters—Canadian Taxation” (which references~~ Act, and the ~~statements~~ Prospectus was filed on [DATE] with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission under ~~“Description of Debt Securities and Warrants—Canadian Taxation”)~~the Act; and, to our knowledge, no stop order suspending the ~~extent~~ effectiveness of the Registration Statement has been issued and no proceeding for that ~~they constitute summaries of legal matters referred to therein, fairly summarize in all material respects~~ purpose has been instituted or threatened by the ~~legal matters referred to therein~~Commission. (d) ~~The Underwriters~~ You shall have received ~~an opinion~~ a letter of ~~Oxxxx, Hxxxxx~~ Xxxxxxx Xxxxxxx & ~~Harcourt~~ Xxxxxxxx LLP, ~~Canadian~~ counsel to for the ~~Underwriters, given in respect of the laws of British Columbia and Canada~~Company, dated the Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion, to the effect that: (i) ~~The Securities are exempted securities~~ Such counsel shall advise the Underwriters that each of the Registration Statement as of the date it first became effective under the ~~Trust Indenture Act of 1939~~Securities Act, and the Prospectus, as ~~amended (~~of its date, appeared on its face to be appropriately responsive, in all material respects, to the ~~“Trust Indenture Act”), and no qualification of an indenture in respect~~ requirements of the ~~Securities under~~ Act and the ~~Trust Indenture Act is required for the issuance, sale~~ applicable rules and ~~delivery~~ regulations of the ~~Securities.~~Commission thereunder, except that in each case such counsel shall express no belief with respect to the financial statements or other financial or statistical data contained in, incorporated or deemed incorporated by reference in, or omitted from the Registration Statement, the Prospectus or the Exchange Act Documents; and (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have Nothing has come to such counsel’s attention ~~which caused~~ that causes such counsel to believe that (A) the Registration Statement (~~other than~~ including the ~~financial statements~~ Exchange Act Documents and ~~other financial data contained therein or omitted therefrom, as~~ the Prospectus deemed to ~~which such counsel has not been requested to comment),~~ be a part thereof) as of the date of this ~~Agreement,~~ Underwriting Agreement contained an any untrue statement of a material fact or omitted to state a any material fact required to be stated therein or necessary in order to make the statements therein not misleading; , (B) the Time of Sale Information (~~other than~~ including the ~~financial statements and other financial data contained therein~~ documents incorporated by reference or ~~omitted therefrom, as to which such counsel has not been requested to comment~~deemed incorporated by reference therein), as of the ~~Time~~ time of ~~Sale,~~ the pricing of the offering of the Securities on the date of this Underwriting Agreement 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 under which they were made, not ~~misleading;~~ misleading or (C) that the ~~Final~~ Prospectus (~~other than~~ including the ~~financial statements and other financial data contained therein~~ documents incorporated by reference or ~~omitted therefrom, as to which such counsel has not been requested to comment~~deemed incorporated by reference therein), as of ~~its~~ the date of this Underwriting Agreement or as of the Closing Date, contained or contains an any untrue statement of a material fact or omitted or omits to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, ~~and~~except that in each case such counsel shall express no belief in any of clauses (A), ~~in such counsel’s opinion, the Registration Statement and the Final Prospectus~~ (~~other than~~ B) or (C) above with respect to the financial statements ~~and~~ or other financial or statistical data contained ~~therein~~ in, incorporated or deemed incorporated by reference in, or omitted ~~therefrom~~from the Registration Statement, ~~as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to~~ the ~~requirements~~ Time of Sale of Information, the ~~Securities~~ Prospectus or the Exchange Act ~~and the applicable rules and regulations of the SEC thereunder~~Documents. f(e) ~~The Underwriters~~ You shall have received ~~an opinion of Linklaters~~ from Cravath, Swaine & Xxxxx LLP, ~~United Kingdom~~ counsel for the ~~Province~~Underwriters, such opinion or opinions, dated the Closing Date, ~~subject~~ with respect to the incorporation of the Company, the validity of the Securities, the Registration Statement, the Prospectus, and other related matters as you may require, and the Company shall have furnished to such ~~qualifications and based~~ counsel such documents as they request for the purpose of enabling them to pass upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to thereinmatters. g(f) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters You shall have received a certificate of the ~~Minister of Finance of the Province~~Chairman, the ~~Deputy Minister of Finance of~~ President, any Vice-Chairman, any Senior Executive Vice President, the ~~Province~~ Chief Financial Officer, any Executive Vice President, the Treasurer or ~~another officer of the Ministry of Finance of the Province satisfactory to the Representatives~~any Senior Vice President, dated the Closing Date, in which such ~~Minister, Deputy Minister or other~~ officer~~, as the case may be~~, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of the ~~Province~~ Company in this Agreement are true and correct, that the ~~Province~~ Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or pursuant to Section 8A under the Act have been instituted or, to the best of his or her knowledge, are contemplated by the ~~SEC~~Commission, and that, subsequent to the date of the most recent financial statements in the Time of Sale Information and the Prospectus, there has been no material adverse change in the financial position or results of operations of the Company and its subsidiaries except as set forth or contemplated in the Time of Sale Information and the Prospectus or as described in such certificate. i(g) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province You shall have ~~furnished to the Underwriters~~ received letters of PricewaterhouseCoopers LLP, dated [ ] and ~~to counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. k) Subsequent to the execution of this Agreement and prior to~~ the Closing Date, confirming that they are independent public accountants within the meaning of the Act and the Rules and Regulations, and stating in effect that (i) in their opinion the financial statements and schedules examined by them and included in the Time of Sale Information and the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations, (ii) on the basis of a reading of the latest available interim financial statements of the Company, inquiries of officials of the Company responsible 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 in the Time of Sale Information and the Prospectus, if any, do not comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations, or are not stated on a basis substantially consistent with that of the audited financial statements included in the Time of Sale Information and the Prospectus, (B) at the date of the latest available balance sheet read by such accountants, or at a subsequent specified date not more than five days prior to such Closing Date, there ~~shall not have occurred~~ was any ~~downgrading~~change in the common stock, ~~nor shall~~ preferred stock or long-term debt of the Company and its consolidated subsidiaries or any ~~notice have been given~~ decrease (other than as occasioned by the declaration of regular dividends) in consolidated stockholders’ equity of the Company and its consolidated subsidiaries as compared with amounts shown on the latest audited annual or unaudited quarterly (whichever the case may be) balance sheet included in the Time of Sale Information and the Prospectus or (C) for the period from the date of the latest audited income statement included in the Time of Sale Information and the Prospectus to the date of the latest available income statement read by such accountants there were any ~~intended or potential downgrading or~~ decreases, as compared with the corresponding period of ~~any placing on credit watch with negative implications~~the previous year, in the ~~ratings accorded the debt securities~~ consolidated net income of the ~~Province by any nationally recognized statistical rating agency~~ Company and its subsidiaries on a consolidated basis, except in all instances for changes or decreases set forth in such letter or which the Time of Sale Information and the Prospectus discloses have occurred or may occur, and (iii) they have compared certain agreed dollar amounts (or percentages derived from such dollar amounts) and other financial information (and ratios) included in the ~~United States~~Time of Sale Information and the Prospectus (to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Company and its subsidiaries subject to the internal controls of the Company’s accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter, and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter. For purposes of this subsection, “Prospectus” shall mean the prospectus as amended and supplemented on the date of such letter. All ~~such opinions, certificates, letters and documents will~~ financial statements included in material incorporated by reference into the Prospectus shall be deemed included in ~~compliance with~~ the ~~provisions hereof only if they are reasonably satisfactory to the Representatives.~~ Prospectus for purposes of this subsection. (h) The ~~Province~~ Company will furnish ~~the Underwriters~~ you with such conformed copies of such opinions, certificates, letters and documents as ~~the Representatives~~ you reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.

Appears in 1 contract

Samples: Underwriting Agreement (JPMorgan Chase Capital XXV)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the several Underwriters to purchase and pay for the Offered Securities will be subject to the accuracy of the representations and warranties on the part of the ~~Province~~ Company herein, to the accuracy of the statements of ~~the representatives~~ officers of the ~~Province~~ Company made pursuant to the provisions hereof, to the performance by the ~~Province~~ Company of its obligations hereunder ~~and with regard to the Securities~~ and to the following additional conditions precedent: (a) ~~Prior~~ The Prospectus as amended or supplemented in relation to the ~~Closing Date~~applicable Offered Securities shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing (without reliance on Rule 424(b)(8)) by the Rules and Regulations and in accordance with Section 5(a) hereof; if the Company has elected to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall have become effective by 10:00 P.M., Washington, D.C. time, on the date hereof; no stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement or any part thereof shall have been issued and no ~~proceedings~~ proceeding for that purpose shall have been ~~instituted or,~~ initiated or to the knowledge of the ~~Province or the Representatives, shall be contemplated~~ Company threatened by the ~~SEC~~Commission; and ~~each Issuer Free Writing Prospectus~~all requests for additional information on the part of the Commission shall have been complied with. (i) On the date hereof, Deloitte & Touche LLP shall have furnished to the ~~extent required by Rule 433 under~~ Underwriters a letter, dated as of the date hereof, in form and substance satisfactory to the Underwriters, confirming that they are an independent registered public accounting firm with respect to the Company and its subsidiaries within the meaning of the Securities Act, ~~shall have been filed~~ the Exchange Act and the applicable published Rules and Regulations and stating that as of the Applicable Time (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Preliminary Prospectus as of a particular time not more than five business days prior to the Applicable Time) conclusions and findings of such firm, to the effect that: (A) in their opinion the financial statements examined by them and incorporated by reference in the Preliminary Prospectus comply as to form in all material respects with the ~~SEC under~~ applicable accounting requirements of the Securities Act; , the Exchange Act and the ~~Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time,~~ related published Rules and Regulations; (B) on the ~~second~~ basis of a reading of the latest available interim financial statements of the Company, inquiries of officials of the Company who have responsibility for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that: (1) at the date of the latest available balance sheet read by such accountants, or at a subsequent specified date not more than one business day ~~following~~ prior to the date of this Agreement~~. b) Subsequent to the execution of this Agreement and prior to the Closing Date~~, there ~~shall not have occurred~~ was any ~~material adverse~~ change in the ~~financial, economic~~ capital stock or ~~political condition~~ any increase in short-term indebtedness or long-term debt of the ~~Province from that set forth~~ Company and its consolidated subsidiaries or, at the date of the latest available balance sheet read by such accountants, there was any decrease in total shareholders’ equity or total consolidated net current assets, as compared with amounts shown on the latest balance sheet incorporated by reference in the ~~Registration Statement~~Preliminary Prospectus; (2) for the period from the closing date of the latest statement of income incorporated by reference in the Preliminary Prospectus to the closing date of the latest statement of income read by such accountants, there were any decreases, as compared with the ~~Time~~ corresponding period of ~~Sale Information~~ the previous year, in consolidated revenue or net income; (3) at [ ], there was any change in the capital stock, any increases in short-term indebtedness or long-term debt, or any decreases in net current assets or total shareholder’s equity, of the Company and its consolidated subsidiaries, in each case as compared with amounts shown on the ~~Final~~ latest balance sheet incorporated by reference in the Preliminary Prospectus; or (4) for the period from [ ] to [ ], there were any decreases, as compared with the corresponding period in the preceding year, in consolidated revenue or net income; and (C) they have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the ~~Underwriters shall have received~~Preliminary Prospectus (in each case to the extent that such dollar amounts, on percentages and other financial information are derived from the ~~Closing Date~~general accounting records of the Company and its subsidiaries subject to the internal controls of the Company’s accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a ~~certificate dated the Closing Date~~ reading of such general accounting records and ~~signed by the Minister of Finance of the Province~~other procedures specified in such letter and have found such dollar amounts, ~~the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory~~ percentages and other financial information to ~~the Representatives to the effect set forth~~ be in ~~the first clause of this Section 9(b)~~agreement with such results, except as otherwise specified in such letter. c(ii) The Underwriters shall have received ~~an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province,~~ a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Provinceletter, dated the Closing Date, of Deloitte & Touche LLP which meets the requirements of subsection (b)(i) of this Section, except that (A) the specified date referred to in such subsection will be a date not more than one business day prior to the ~~effect that under~~ Closing Date for the ~~laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion~~ purposes of this ~~type:~~subsection, and (B) references to the Preliminary Prospectus will be replaced with references to the Prospectus. (c) Subsequent to the Applicable Time, there shall not have been (i) ~~The Province~~ any change, or any development or event involving a prospective change, in the financial condition, business, properties or results of operations of the Company and its subsidiaries taken as a whole, which, in the judgment of the Representatives, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Securities; (ii) any downgrading in the rating of any debt securities or preferred stock of the Company by any “nationally recognized statistical rating organization” (as such term is defined in Section 3 of the Exchange Act), or any public announcement that any such organization has ~~full power~~ under surveillance or review its rating of any debt securities or preferred stock of the Company (other than an announcement with positive implications of a possible upgrading, and ~~authority~~ no implication of a possible downgrading, of such rating); (iii) any material 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; (iv) any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (v) any banking moratorium declared by U.S. Federal or New York authorities; (vi) any material disruption in settlements of securities or clearance services in the United States; or (vii) any attack on, or outbreak or escalation of hostilities or act of terrorism involving, the United States, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of the Representatives, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to ~~execute~~ proceed with completion of the offering or sale of and ~~deliver this Agreement and to issue and sell~~ payment for the Offered Securities. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an ~~opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada~~opinion, dated the Closing Date, ~~as to the matters specified in subdivisions (i) through (vii)~~ of ~~paragraph (c) of this Section 9~~[ ], subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) General Counsel of the ~~Minister~~ Company, substantially in the form of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereonExhibit A hereto. (e) The Underwriters shall have received ~~the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province~~an opinion, dated the Closing Date, ~~subject to such qualifications and based upon such assumptions as are customary in the United States in respect~~ of ~~such opinion~~Xxxxxxx Coie LLP, special counsel to the ~~effect that: (i) The Securities are exempted securities under~~ Company, in substantially the ~~Trust Indenture Act~~ form of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the SecuritiesExhibit B hereto. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received ~~an opinion of Linklaters~~ from Xxxxxx & Xxxxxxx LLP, ~~United Kingdom~~ counsel for the ~~Province~~Underwriters, such opinion or opinions, dated the Closing Date, ~~subject~~ in form and substance satisfactory to the Underwriters, and the Company shall have furnished to such ~~qualifications and based~~ counsel such documents as they request for the purpose of enabling them to pass upon such ~~assumptions as are customary in the United Kingdom in respect of~~ matters. In rendering such opinion, Xxxxxx & Xxxxxxx LLP may rely as to the ~~effect that~~ incorporation of the ~~statements in~~ Company and all other matters governed by Oregon law upon the ~~Time~~ opinion of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters Xxxxxxx Coie LLP referred to ~~therein, fairly summarize in all material respects the legal matters referred to therein~~above. (g) The Underwriters shall have received ~~an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters~~a certificate, dated the Closing Date, ~~as to the matters specified in subdivisions (i), and (iv) (but only as~~ of the ~~date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications~~ President or any Vice President and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a ~~certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province~~ principal financial or ~~another~~ accounting officer of the ~~Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date,~~ Company in which such ~~Minister, Deputy Minister or other officer, as the case may be~~officers, to the best of ~~his or her~~ their knowledge after reasonable investigation, shall state ~~that~~ that: (i) the representations and warranties of the ~~Province~~ Company in this Agreement are true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect; (ii) that the ~~Province~~ Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and (iii) that, ~~that no stop order suspending~~ subsequent to the ~~effectiveness~~ date of the ~~Registration Statement~~ most recent financial statements in, or incorporated by reference in, the Preliminary Prospectus, there has been ~~issued and~~ no proceedings for that purpose have been instituted or are contemplated by the SEC. i) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province shall have furnished to the Underwriters and to counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. k) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any downgradingmaterial adverse change, nor ~~shall~~ any ~~notice have been given of any intended~~ development or ~~potential downgrading or of any placing on credit watch with negative implications~~event involving a prospective material adverse change, in the ~~ratings accorded the debt securities~~ financial condition, business or results of operations of the ~~Province by any nationally recognized statistical rating agency~~ Company and its subsidiaries taken as a whole except as set forth in the ~~United States. All~~ Disclosure Package and the Prospectus or as described in such ~~opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives~~certificate. The ~~Province~~ Company will (i) furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the ~~Representatives~~ Underwriters reasonably request. If The Underwriters may waive compliance with any ~~of the above~~ conditions ~~shall not have been fulfilled as reasonably contemplated herein, this Agreement and all~~ to their obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreementhereunder.

Appears in 1 contract

Samples: Underwriting Agreement (Pacificorp /Or/)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the ~~several~~ Underwriters ~~to purchase and pay for the Securities will be~~ hereunder are subject to the accuracy of the representations and warranties on the part of the Province herein, to the accuracy of the statements of the representatives of the Province made pursuant to the provisions hereof, to the performance by the Province of its obligations hereunder and with regard to the Securities and to the following ~~additional conditions precedent~~conditions: (a) ~~Prior to the Closing Date,~~ The Prospectus shall have been filed as required by Section 3(a) and (i) no ~~stop~~ order suspending the effectiveness of the Registration ~~Statement~~Statement or the qualification or registration of the Underwritten Securities under the securities or blue sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by the Commission or the authorities of any such jurisdiction, ~~as amended from time to time,~~ (ii) any request for additional information on the part of the staff of the Commission or any such authorities shall have been ~~issued and no proceedings for that purpose shall have been instituted or,~~ complied with to the ~~knowledge~~ satisfaction of the ~~Province~~ staff of the Commission or such authorities, and (iii) after the date hereof no amendment or supplement to the Registration Statement or the Representatives, shall be contemplated by the SEC; and each Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act, shall have been filed with the SEC under the Securities Act; and the Final Prospectus shall have been filed ~~with~~ unless a copy thereof was first submitted to the ~~SEC pursuant to Rule 424~~ Underwriters and the Underwriters did not ~~later than 5:00 p.m. New York City time, on the second business day following the date of this Agreement~~object thereto. (b) ~~Subsequent to~~ Since the ~~execution~~ respective dates as of ~~this Agreement~~ which information is given in the Registration Statement and ~~prior to~~ the ~~Closing Date~~Prospectus, (i) there shall not have ~~occurred any~~ been a material adverse change in the ~~financial~~general affairs, ~~economic~~ business, business prospects, properties, management, condition (financial or ~~political condition~~ otherwise) or results of operations of Company and the Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) neither the Company nor any of the ~~Province~~ Subsidiaries shall have sustained any material loss or interference with its business or properties from ~~that~~ fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration ~~Statement, the Time of Sale Information~~ Statement and the ~~Final~~ Prospectus; , if in any case the judgment of the Underwriters any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Underwritten Securities by the Underwriters and at the Public Offering Price. (c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of the Subsidiaries or any of their respective officers or directors or trustees, as the case may be, in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceeding it is reasonably probable that an unfavorable ruling, decision or finding would have a Material Adverse Effect. (d) Each of the representations and warranties of the Company and the Operating Partnership contained herein shall be true and correct in all material respects at the Closing Date and the Option Closing Date, as if made at the Closing Date and the Option Closing Date, and all covenants and agreements contained herein to be performed on the part of the Company and the Operating Partnership and all conditions contained herein to be fulfilled or complied with by the Company and the Operating Partnership at or prior to the Closing Date and the Option Closing Date, shall have been duly performed, fulfilled or complied with. (e) The Underwriters shall have ~~received~~received one or more opinions, ~~on the Closing Date, a certificate~~ dated the Closing Date and ~~signed by~~ the ~~Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance~~ Option Closing Date and satisfactory in form and substance to the ~~Representatives~~ Underwriters’ counsel, from Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx LLP, Maryland counsel to the Company, to the effect set forth in Exhibit B. (f) The Underwriters shall have received one or more opinions, dated the ~~first clause~~ Closing Date and the Option Closing Date and satisfactory in form and substance to the Underwriters’ counsel, from Xxxxxx & Xxxxxxx LLP, special corporate and tax counsel to the Company, (i) to the effect set forth in Exhibit C and (ii) concerning the tax matters set forth below: (i) Based on the facts, representations and assumptions set forth in the opinion, commencing with the Company’s taxable year ending December 31, 1997 and continuing through the Company’s taxable year ending December 31, 2002, the Company has been organized and has operated in conformity with the requirements for qualification as a “real estate investment trust” under the Code, and its proposed method of ~~this Section 9(b)~~operation will enable the Company to continue to meet the requirements for qualification and taxation as a real estate investment trust under the Code. c(ii) The statements in the Prospectus Supplement under the caption “United States Federal Income Tax Considerations,” insofar as they purport to describe or summarize certain provisions of the agreements, statutes, regulations and other legal matters referred to therein, are accurate descriptions or summaries in all material respects; and (iii) The Operating Partnership is classified as a partnership for United States federal income tax purposes and not as (a) an association taxable as a corporation or (b) a “publicly traded partnership” taxable as a corporation under Section 7704(a) of the Code. (g) The Underwriters shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Provinceopinion, dated the Closing Date and the Option Closing Date, from , Underwriters’ counsel, with respect to the ~~effect that under~~ Registration Statement, the ~~laws of British Columbia~~ Prospectus and ~~Canada and subject~~ this Agreement, which opinion shall be satisfactory in all respects to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the ~~Securities~~Underwriters. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. dh) The Underwriters shall have ~~received an opinion of Oxxxx~~received, ~~Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect~~ on each of the ~~laws of British Columbia~~ date hereof and ~~Canada, dated~~ the Closing Date and the Option Closing Date, ~~as to~~ a letter dated the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Provincedate hereof, the ~~Deputy Minister of Finance of~~ Closing Date or the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the RepresentativesOption Closing Date, as the case may be, ~~Canadian counsel~~ in form and substance reasonably satisfactory to the ~~Province~~Underwriters, is from Deloitte & Touche LLP, independent public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into the Registration Statement and the Prospectus; provided that the letter delivered on the Closing Date and the Option Closing Date shall use a “cut-off date” not earlier than two days before the delivery date. (i) At the Closing Date and at the Option Closing Date, there shall be furnished to the Underwriters an accurate certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of each of (a) Company on behalf of itself and (b) the Company in its capacity as general partner of the Operating Partnership, in form and substance satisfactory to ~~them and they believe that~~ the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinionUnderwriters, to the effect that: (i) The ~~Securities are exempted securities~~ Prospectus has been filed as required by Section 3(a) and no stop order suspending the effectiveness of the Registration Statement under the ~~Trust Indenture~~ Securities Act or the blue sky laws of ~~1939~~any jurisdiction has been issued and, ~~as amended (~~to the ~~“Trust Indenture Act”)~~best of their knowledge, information and belief, no ~~qualification~~ proceeding for such purpose is pending before or threatened or contemplated by the Commission or the authorities of ~~an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities~~any such jurisdiction. (ii) ~~The statements in~~ Any request for additional information with respect to the ~~Time~~ Registration Statement on the part of ~~Sale Information and Final Prospectus under “Description~~ the staff of ~~Bonds” and “Description~~ the Commission or any such authorities has been complied with to the satisfaction of ~~Debt Securities and Warrants”, insofar as~~ the staff of the Commission or such ~~statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein~~authorities. (iii) ~~The statements in~~ Each signer of such certificate has carefully examined the ~~Time of Sale Information,~~ Registration Statement and ~~Final~~ the Prospectus (including any documents filed under ~~“Description of Debt Securities~~ the Exchange Act and ~~Warrants — United States Federal Income Taxation”, as supplemented~~ deemed to be incorporated by ~~“Tax Matters — United States Taxation”, to~~ reference into the ~~extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv~~Prospectus) ~~Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province~~ and ~~their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that~~ (A) ~~the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment),~~ believes that as of the date of ~~this Agreement~~such certificate, ~~contained an untrue statement of a~~ such documents are true and correct in all material ~~fact or omitted~~ respects and do not omit to state a material fact required to be stated therein or necessary in order to make the statements therein not ~~misleading;~~ untrue or misleading and (B) does not know of any event that has occurred as a result of which it is necessary to amend or supplement the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, contained an untrue statement of a material fact or omitted to state a material fact necessary Prospectus in order to make the statements ~~therein,~~ therein not untrue or misleading in any material respect and there has been no document required to be filed under the ~~light of~~ Exchange Act and the ~~circumstances under which they were made, not misleading; or (C)~~ Exchange Act Rules and Regulations that upon such filing would be deemed to be incorporated by reference into the ~~Final~~ Prospectus ~~(other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel~~ that has not been ~~requested~~ so filed. (iv) Each of the representations and warranties of the Company and the Operating Partnership contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respects. (v) Each of the covenants required to ~~comment)~~be performed by the Company and the Operating Partnership herein on or prior to the delivery of such certificate has been duly, as timely and fully performed and each condition herein required to be complied with by the Company and the Operating Partnership on or prior to the date of ~~its date or~~ such certificate has been duly, timely and fully complied with. (vi) Since the execution and delivery of the Underwriting Agreement and prior to the Closing Date and the Option Closing Date, ~~contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein,~~ there has not occurred any downgrading in the ~~light~~ rating accorded the Company or any securities of the ~~circumstances under which they were made, not misleading, and,~~ Company by any rating agency nor has any notice been given to the Company or any of the Subsidiaries of (A) any intended or potential downgrading by any rating agency in such ~~counsel’s opinion~~securities, or (B) any review or possible change by any rating agency that does not indicate a stable, positive or improving rating accorded such securities. (j) The “lock-up” agreements, each substantially in the form of Exhibit D attached hereto, between you and certain stockholders, officers and directors of the Company and the Operating Partnership relating to sales and certain other dispositions of securities of the Company and the Operating Partnership, delivered to you on or before the date hereof, shall be in full force and effect on the Closing Date and the Option Closing Date. (k) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Underwritten Securities, the Registration Statement and the ~~Final Prospectus (~~Prospectus, and all other ~~than~~ legal matters relating to this Agreement and the ~~financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to~~ transactions contemplated hereby shall be ~~appropriately responsive~~ reasonably satisfactory in all material respects to ~~the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom~~ counsel for the ~~Province~~Underwriters and the Company and the Operating Partnership shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (l) The NYSE shall have approved the Underwritten Securities for listing, ~~dated~~ subject only to official notice of issuance. (m) Prior to the Closing Date, ~~subject to such qualifications~~ the Articles Supplementary shall have been filed and ~~based upon such assumptions~~ accepted by SDAT and, as ~~are customary in~~ of the ~~United Kingdom in respect of such opinion~~Closing Date and the Option Closing Date, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to thereinArticles Supplementary shall be effective. g(n) ~~The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated~~ Prior to the Closing Date, the Company shall execute and deliver to the Underwriters a letter in the form of Exhibit E attached hereto for the benefit of each of (i) and/or its subsidiaries and affiliates, and (ii) and/or its subsidiaries and affiliates. (o) The Company and the Operating Partnership shall have furnished to the Underwriters such certificates, including, without limitation, one or more certificates of the Secretary of the Company on behalf of itself and the Operating Partnership, in addition to those otherwise specifically mentioned herein, as the Underwriters may have reasonably requested as to the ~~matters specified~~ accuracy and completeness at the Closing Date and the Option Closing Date of any statement in ~~subdivisions (i)~~the Registration Statement or the Prospectus or any documents filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus, ~~and (iv) (but only as of the date of this Agreement~~ as to ~~clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in~~ the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated accuracy at the Closing ~~Date, in which such Minister, Deputy Minister or other officer, as~~ Date and the ~~case may be, to the best~~ Option Closing Date of ~~his or her knowledge after reasonable investigation, shall state that~~ the representations and warranties of the ~~Province in this Agreement are true~~ Company and ~~correct, that~~ the ~~Province has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior~~ Operating Partnership herein as to the ~~Closing Date, that no stop order suspending~~ performance by the ~~effectiveness~~ Company and the Operating Partnership of its obligations hereunder or as to the fulfillment of the ~~Registration Statement has been issued~~ conditions concurrent and no proceedings for that purpose have been instituted or are contemplated by the SEC. i) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province shall have furnished precedent to the Underwriters and to counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. k) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The Province will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations ~~of the Underwriters~~ hereunder ~~may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf~~ of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.

Appears in 1 contract

Samples: Underwriting Agreement (Kilroy Realty Corp)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of ~~the several Underwriters to purchase and pay for the Securities will be~~ each Underwriter hereunder are subject to the ~~accuracy~~ following conditions: (a) All filings required by Rule 424 and Rule 430A of the ~~representations~~ Rules and ~~warranties~~ Regulations shall have been made. If the Company has elected to rely upon Rule 462(b), the registration statement filed under Rule 462(b) shall have become effective by 10:00 p.m., Washington, D.C. time, on the ~~part~~ date of the Province herein, to the accuracy of the statements of the representatives of the Province made pursuant to the provisions hereof, to the performance by the Province of its obligations hereunder and with regard to the Securities and to the following additional conditions precedent:this Agreement. a(i) ~~Prior to the Closing Date, no~~ No stop order suspending the effectiveness of the Registration ~~Statement~~Statement or preventing or suspending the use of the Base Prospectus, ~~as amended from time to time~~any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall ~~have been instituted or~~be pending or threatened by the Commission, to (ii) no order suspending the ~~knowledge~~ effectiveness of the ~~Province~~ Registration Statement or the ~~Representatives,~~ qualification or registration of the Shares under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by the ~~SEC; and each Issuer Free Writing Prospectus~~Commission or the authorities of any such jurisdiction, to (iii) any request for additional information on the ~~extent required by Rule 433 under~~ part of the ~~Securities Act,~~ staff of the Commission or any such authorities shall have been ~~filed~~ complied with to the ~~SEC under~~ satisfaction of the ~~Securities Act; and~~ staff of the ~~Final~~ Commission or such authorities, (iv) after the date hereof no amendment or supplement to the Registration Statement, the Prospectus or the Pricing Prospectus shall have been filed ~~with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this Agreement. b) Subsequent~~ unless a copy thereof was first submitted to the ~~execution of this Agreement~~ Representative and ~~prior to~~ the Representative does not object thereto in good faith, and (v) the Representative shall have received certificates, dated the Closing Date and, if later, the applicable Option Closing Date, signed by the Chief Executive Officer and the Chief Financial Officer of the Company (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii) of this paragraph. (c) Since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, (i) there shall not have ~~occurred any~~ been a material adverse change in the ~~financial~~general affairs, ~~economic~~ business, business prospects, properties, management, condition (financial or ~~political condition~~ otherwise) or results of operations of the ~~Province~~ Company or any of its Subsidiaries, whether or not arising from ~~that~~ transactions in the ordinary course of business, in each case other than as described in or contemplated by the Registration Statement and the Pricing Prospectus, and (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not described in the Registration Statement and the Pricing Prospectus, if in the judgment of the Representative any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price. (d) Since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there shall have been no litigation or other proceeding instituted against the Company, any of its Subsidiaries, or any of their officers or directors in their capacities as such, before or by any federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceeding an unfavorable ruling, decision or finding would, in the judgment of the Representative, have a Material Adverse Effect or if, in the judgment of the Representative, any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price. (e) Each of the representations and warranties of the Company and the Selling Stockholders contained herein shall be true and correct in all respects (in the case of any representation and warranty containing a materiality or Material Adverse Effect qualification) or in all material respects (in the case of any other representation and warranty) at the Closing Date and, with respect to the Option Shares, at the applicable Option Closing Date, and all covenants and agreements contained herein to be performed on the part of the Company or the Selling Stockholders and all conditions contained herein to be fulfilled or complied with by the Company or the Selling Stockholders at or prior to the Closing Date and, with respect to the Option Shares, at the applicable Option Closing Date, shall have been duly performed, fulfilled or complied with. (f) The Representative shall have received an opinion, dated the Closing Date and, with respect to the Option Shares, the applicable Option Closing Date, satisfactory in form and substance to the Representative and counsel for the Underwriters from Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, counsel to the Company. (g) The Representative shall have received an opinion, dated the Closing Date and, with respect to the Option Shares, the applicable Option Closing Date, from Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, counsel to the Selling Stockholders in substantially the form set forth in Schedule V hereto. (h) The Representative shall have received an opinion and negative assurance letter, dated the Closing Date and, with respect to the Option Shares, the applicable Option Closing Date, from DLA Piper LLP (US), counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion and negative assurance letter shall be satisfactory in all respects to the Representative. (i) Concurrently with the execution and delivery of this Agreement, the Accountants shall have furnished to the Representative a letter, dated the date of its delivery, addressed to the Representative and in form and substance satisfactory to the Representative, confirming that they are independent accountants with respect to the Company and its Subsidiaries as required by the Act and the Exchange Act and the Rules and Regulations and with respect to certain financial and other statistical and numerical information contained or incorporated by reference in the Registration Statement, the ~~Time of Sale Information~~ Prospectus and the ~~Final Prospectus; and~~ General Disclosure Package. At the ~~Underwriters~~ Closing Date and, as to the Option Shares, the applicable Option Closing Date, the Accountants shall have ~~received~~furnished to the Representative a letter, dated the date of its delivery, which shall confirm, on the ~~Closing Date,~~ basis of a ~~certificate dated~~ review in accordance with the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect procedures set forth in the ~~first clause of this Section 9(b). c) The Underwriters shall have received an opinion of~~ letter from the ~~Attorney General of~~ Accountants, that nothing has come to their attention during the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Province, dated the Closing Date, to the effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on period from the date of ~~issue of~~ the ~~Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law~~ letter referred to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the ~~Supreme Court of British Columbia and no applicable law requires~~ prior sentence to a date (specified in the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available letter) not more than three days prior to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings Closing Date or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated the applicable Option Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, ~~Canadian counsel~~ which would require any change in their letter dated the date hereof if it were required to be dated and delivered at the Closing Date or the applicable Option Closing Date, as the case may be,. (j) At the Closing Date and, as to the ~~Province~~Option Shares, is the applicable Option Closing Date, there shall be furnished to the Representative a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to ~~them and they believe that~~ the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinionRepresentative, to the effect that: (i) ~~The Securities are exempted securities~~ Each signer of such certificate has carefully examined the Registration Statement, the Prospectus and the General Disclosure Package (including any documents filed under the ~~Trust Indenture~~ Exchange Act ~~of 1939, as amended (~~and deemed to be incorporated by reference into the ~~“Trust Indenture Act”),~~ Pricing Prospectus and ~~no qualification of an indenture in respect of~~ the ~~Securities under the Trust Indenture Act is required for the issuance, sale~~ Prospectus) and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) ~~the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment),~~ as of the date of ~~this Agreement~~such certificate, ~~contained an untrue statement of a~~ such documents are true and correct in all material ~~fact or omitted~~ respects and do not omit to state a material fact required to be stated therein or necessary in order to make the statements therein not ~~misleading;~~ untrue or misleading and (B) in the ~~Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as~~ case of the ~~Time~~ certificate delivered at the Closing Date and the applicable Option Closing Date, since the Effective Date no event has occurred as a result of ~~Sale, contained an untrue statement of a material fact~~ which it is necessary to amend or ~~omitted to state a material fact necessary~~ supplement the Prospectus in order to make the statements ~~therein~~therein not untrue or misleading. (ii) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all respects (in the ~~light~~ case of ~~the circumstances under which they were made, not misleading;~~ any representation and warranty containing a materiality or (CMaterial Adverse Effect qualification) ~~the Final Prospectus (other than the financial statements and other financial data contained therein~~ or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects (in the case of any other representation and warranty). (iii) Each of the covenants required to be performed by the Company herein on or prior to the ~~requirements~~ date of such certificate has been duly, timely and fully performed and each condition herein required to be satisfied or fulfilled on or prior to the ~~Securities Act~~ date of such certificate has been duly, timely and fully satisfied or fulfilled. (k) At the Closing Date and, as to the Option Shares, the applicable ~~rules and regulations of~~ Option Closing Date, there shall be furnished to the ~~SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province~~Representative a certificate, dated the ~~Closing Date~~date of its delivery, ~~subject~~ signed by the Selling Stockholders (or the Attorneys-in-Fact on their behalf), in form and substance satisfactory to ~~such qualifications and based upon such assumptions as are customary in~~ the ~~United Kingdom in respect of such opinion~~Representative, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of the ~~Province in this Agreement~~ Selling Stockholders contained herein are true and ~~correct~~correct in all material respects on and as of the date of such certificate as if made on and as of the date of such certificate, ~~that~~ and each of the ~~Province has complied with all agreements~~ covenants and ~~satisfied all~~ conditions ~~on its part~~ required herein to be performed or ~~satisfied at~~ complied with by the Selling Stockholders on or prior to the date of such certificate has been duly, timely and fully performed or complied with. (l) On or prior to the Closing Date, ~~that no~~ the Representative shall have received the executed agreements referred to in Section 5(m). (m) The Shares shall be qualified for sale in such jurisdictions as the Representative may reasonably request and each such qualification shall be in effect and not subject to any stop order ~~suspending~~ or other proceeding on the ~~effectiveness of~~ Closing Date or the ~~Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the SEC~~applicable Option Closing Date. i(n) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province Company shall have furnished to the ~~Underwriters and~~ Representative such certificates, in addition to ~~counsel for the Underwriters such further certificates and documents~~ those specifically mentioned herein, as the ~~Representatives and such counsel~~ Representative may have reasonably ~~request. k) Subsequent~~ requested as to the ~~execution of this Agreement~~ accuracy and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The Province will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or completeness at ~~any time prior to,~~ the Closing Date and the applicable Option Closing Date of any statement in the Registration Statement, the Prospectus or the General Disclosure Package, as to the accuracy at the Closing Date and the applicable Option Closing Date of the representations and warranties of the Company herein, as to the performance by the ~~Representatives on behalf~~ Company of its obligations hereunder, or as to the fulfillment of the ~~Underwriters, without any liability on the part of any Underwriter~~ conditions concurrent and precedent to the ~~Province or~~ obligations hereunder of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this AgreementRepresentative.

Appears in 1 contract

Samples: Underwriting Agreement (EGAIN Corp)

Conditions of the Obligations of the Underwriters. The ~~respective obligations~~ obligation of the ~~several~~ Underwriters to purchase and pay for the Offered Securities will be subject to the accuracy of the representations and warranties on the part of the ~~Province~~ Seller herein, to the accuracy of the statements of the ~~representatives~~ respective officers of the ~~Province~~ Seller made pursuant to the provisions hereof, to the performance by the ~~Province of its obligations~~ Seller hereunder ~~and with regard to the Securities~~ and to the following additional conditions precedent: (a) ~~Prior~~ The Underwriters shall have received from [Accountants] (i) a letter or letters, dated the date hereof, confirming that they are independent public accountants within the meaning of the Act and the Rules and Regulations and otherwise in form and substance satisfactory to the Underwriters and counsel to the Underwriters and (ii) a letter or letters, dated the Closing Date, updating the letter or letters referred to in clause (i) above, in form and substance satisfactory to the Underwriters and counsel for the Underwriters. (b) All actions required to be taken and all filings required to be made by the Seller under the Act prior to the sale of the Offered Securities shall have been duly taken or made. At and prior to the Closing Date, no stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Province~~ Seller or the ~~Representatives~~Underwriters, shall be contemplated by the SEC; and each Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act, shall have been filed with the SEC under the Securities Act; and the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this AgreementCommission. b(c) Subsequent to the execution and delivery of this ~~Agreement and prior to the Closing Date~~Agreement, there shall not have occurred any material adverse change in the financial, economic or political condition of the Province from that set forth in the Registration Statement, the Time of Sale Information and the Final Prospectus; and the Underwriters shall have received, on the Closing Date, a certificate dated the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth in the first clause of this Section 9(b). c) The Underwriters shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Province, dated the Closing Date, to the effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) ~~The Province has full power and authority to execute and deliver this Agreement and to issue and sell~~ any change, or any development involving a prospective change, in or affecting particularly the business or properties of the Trust or of the Seller that, in the reasonable judgment of the Underwriters, materially impairs the investment quality of the Offered Securities. ; (ii) ~~This Agreement and~~ any downgrading in the ~~Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement~~ rating of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Offered Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated the Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion, to the effect that: (i) The Securities are exempted securities under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of the Province in this Agreement are true and correct, that the Province has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the SEC. i) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province shall have furnished to the Underwriters and to counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. k) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the ~~Province~~ Seller, by any "nationally recognized statistical rating ~~agency~~ organization" (as such term is 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 the Offered Securities or the securities of the Seller (other than an 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 Seller on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by federal or New York, Michigan or Ohio authorities; or (v) any outbreak or escalation of major hostilities in which the United ~~States. All such opinions~~States is involved, ~~certificates~~any declaration of war by Congress or any other substantial national or international calamity or emergency if, ~~letters and documents will be~~ in ~~compliance with~~ the provisions hereof only if they are reasonably satisfactory to the Representatives. The Province will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf reasonable judgment of the Underwriters, ~~without any liability on~~ the ~~part~~ effects of any ~~Underwriter to the Province or of the Province to any Underwriter~~such outbreak, ~~except as provided in Section 6~~escalation, ~~Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.~~declaration, calamity or

Appears in 1 contract

Samples: Underwriting Agreement (National City Credit Card Master Trust)

Appears in 1 contract

Samples: Underwriting Agreement (Teppco Partners Lp)

Conditions of the Obligations of the Underwriters. The ~~respective obligations~~ obligation of the ~~several~~ Underwriters to purchase and pay for the ~~Securities~~ Notes will be subject to the accuracy of the representations and warranties on by the ~~part of~~ Transferor and the ~~Province~~ Bank herein, to the accuracy of the statements of ~~the representatives~~ officers of the ~~Province~~ Transferor and the Bank made pursuant to the provisions hereof, to the performance by the ~~Province~~ Transferor and the Bank of ~~its~~ their respective obligations hereunder ~~and with regard to the Securities~~ and to the following additional conditions precedent: (a) ~~Prior~~ On or prior to each of the date of this Agreement and the Closing Date, the Representatives shall have received an agreed upon procedures letter or letters of Deloitte & Touche LLP, dated on or prior to the date of the Preliminary Prospectus Supplement and the Prospectus Supplement, as applicable, confirming that they are independent public accountants within the meaning of the Act and the applicable published Rules and Regulations thereunder, which letter shall be substantially in the form heretofore agreed to and otherwise in form and in substance satisfactory to the Representatives and their counsel. (b) Each of the Preliminary Prospectus and the Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 5(a) of this Agreement; and, prior to the Closing Date, no stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Province~~ Transferor or the Representatives, shall be contemplated by the SEC; and each Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act, shall have been filed with the SEC under the Securities Act; and the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this AgreementCommission. b(c) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any material adverse change in the financial, economic or political condition of the Province from that set forth in the Registration Statement, the Time of Sale Information and the Final Prospectus; and the Underwriters shall have received, on the Closing Date, a certificate dated the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth in the first clause of this Section 9(b). c) The Underwriters shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Province, dated the Closing Date, to the effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement ~~and~~ none of the ~~Fiscal Agency Agreement~~following shall have occurred: (i) trading in securities generally on the New York Stock Exchange, the ~~issuance~~ American Stock Exchange or the over-the-counter market shall have been suspended, limited or minimum prices shall have been established on either of such exchanges or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction or any suspension of trading of any securities of the ~~Securities~~ Certificate Trust, the Issuer, the Bank, the Transferor or First National of Nebraska, Inc. or any of their Affiliates on any exchange or in the over-the-counter market; (ii) a banking moratorium shall have been declared by Federal or state authorities; (iii) any downgrading in the rating of any debt securities of the Certificate Trust, the Issuer, the Bank, the Transferor, First National of Nebraska, Inc. or any of their Affiliates 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 such debt securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iv) the ~~performance~~ United States shall have become engaged in hostilities, there shall have been an escalation of hostilities involving the United States or there shall have been a declaration of a national emergency or war by the ~~Province~~ United States or any other substantial national or international calamity or emergency which, in the judgment of ~~its obligations hereunder~~ the Representatives, makes it impractical or inadvisable to proceed with the completion and ~~thereunder have been obtained~~ sale of and ~~are~~ payment for the Notes; and (v) any material adverse change in ~~full force~~ the financial markets for asset-backed securities in the United States which, in the Representatives' judgment, makes it impractical to proceed with completion of the sale of and ~~effect~~payment for the Notes. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The ~~Underwriters~~ Representatives shall have received an opinion ~~of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada~~or opinions, dated the Closing Date, ~~as to the matters specified in subdivisions (i) through (vii)~~ of ~~paragraph (c) of this Section 9~~Xxxxx Xxxx LLP, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian special counsel to the ~~Province~~Transferor and the Bank, is satisfactory in form and substance ~~satisfactory~~ to ~~them and they believe that~~ the Representatives ~~are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States~~ and their counsel ~~for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion,~~ to the effect that: (i) The ~~Securities are exempted securities~~ Transferor is a limited liability company in good standing, duly organized and validly existing under the ~~Trust Indenture Act~~ laws of ~~1939~~the State of Nebraska; the Bank is a national banking association in good standing, duly organized and validly existing under the laws of the United States of America; and each of the Transferor and the Bank (each referred to in this subsection (d) as ~~amended (~~a "FNBO Entity") is duly qualified to do business and is in good standing under the ~~“Trust Indenture Act”)~~laws of each jurisdiction which requires such qualification wherein it owns or leases material properties or conducts material business, and ~~no qualification of an indenture~~ has full power and authority to own its properties, to conduct its business as described in ~~respect of~~ the ~~Securities~~ Registration Statement, the Preliminary Prospectus and the Prospectus, to enter into and perform its obligations under the ~~Trust Indenture Act~~ Transaction Documents to which it is ~~required for~~ a party, and to consummate the ~~issuance, sale and delivery of the Securities~~transactions contemplated thereby. (ii) ~~The statements in~~ Each of the ~~Time of Sale Information~~ Transaction Documents and ~~Final Prospectus under “Description of Bonds”~~ this Agreement has been duly authorized, executed and ~~“Description of Debt Securities and Warrants”, insofar as such statements constitute~~ delivered by each FNBO Entity that is a ~~summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein~~party thereto. (iii) ~~The statements~~ Neither the execution and delivery of the Transaction Documents and this Agreement by either FNBO Entity that is party thereto nor the consummation of any of the transactions contemplated therein nor the fulfillment of the terms thereof, conflicts with or violates, results in ~~the Time~~ a material breach of ~~Sale Information~~or constitutes a default under (A) any Requirements of Law applicable to such FNBO Entity, ~~and Final Prospectus under “Description~~ (B) any term or provision of ~~Debt Securities and Warrants — United States Federal Income Taxation”~~any order known to such firm to be currently applicable to such FNBO Entity of any court, regulatory body, administrative agency or governmental body having jurisdiction over such FNBO Entity or (C) any term or provision of any indenture or other agreement or instrument known to such firm to which such FNBO Entity is a party or by which either of them or any of their properties are bound and, as ~~supplemented by “Tax Matters — United States Taxation”~~to FNBO, which has been identified to us as material to the ~~extent that they constitute summaries~~ business or operations of ~~legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein~~FNBO. (iv) ~~Based upon such counsel’s participation~~ Except as otherwise disclosed in ~~conferences with representatives of~~ the ~~Province, counsel for the Province~~ Prospectus (and ~~their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A~~any supplement thereto) or the Registration ~~Statement (other than the financial statements and other financial data contained therein or omitted therefrom~~Statement, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may bethere is no pending or, to the best of ~~his~~ such firm's knowledge, threatened action, suit or ~~her knowledge after reasonable investigation~~proceeding before any court or governmental agency, ~~shall state that~~ authority or body or any arbitrator with respect to the ~~representations and warranties~~ Certificate Trust, the Issuer, the Collateral Certificate, the Notes or any of the ~~Province~~ Transaction Documents or any of the transactions contemplated therein with respect to an FNBO Entity which, in the case of any such action, suit or proceeding if adversely determined, would have a material adverse effect on the Notes, the Collateral Certificate, the Certificate Trust or the Issuer or upon the ability of either FNBO Entity to perform its obligations under the Transaction Documents. (v) Each of the Transaction Documents to which an FNBO Entity is a party constitutes the legal, valid and binding agreement of such Person under the laws of Nebraska, enforceable against each such Person in accordance with its terms, subject to (A) the effect of bankruptcy, insolvency, moratorium, receivership, reorganization, liquidation and other similar laws affecting creditors' rights generally and the rights of creditors of national banking associations (including, without limitation, the determination pursuant to 12 U.S.C. Section 1821(e) of any liability for the disaffirmance or repudiation of any contract), (B) the effect of general principles of equity including (without limitation) concepts of materiality, reasonableness, good faith, fair dealing (regardless of whether considered and applied in a proceeding in equity or at law), and also to the possible unavailability of specific performance or injunctive relief, (C) the unenforceability under certain circumstances of provisions indemnifying a party against liability or requiring contribution from a party for liability where such indemnification or contribution is contrary to public policy and (D) certain remedial provisions of the Indenture may be unenforceable in whole or in part under the UCC, but the inclusion of such provisions does not render the other provisions of the Indenture invalid and notwithstanding that such provisions may be unenforceable in whole or in part, the Indenture Trustee, on behalf of the Noteholders, will be able to enforce the remedies of a secured party under the UCC. (vi) This Agreement constitutes the legal, valid and binding obligation of the Transferor and the Bank under the laws of the State of New York, enforceable against the Transferor and the Bank in accordance with its terms, subject to (A) the effect of bankruptcy, insolvency, moratorium, receivership, reorganization, liquidation and other similar laws affecting creditors' rights generally and the rights of creditors of national banking associations (including, without limitation, the determination pursuant to 12 U.S.C. Section 1821(e) of any liability for the disaffirmance or repudiation of any contract), (B) the effect of general principles of equity including (without limitation) concepts of materiality, reasonableness, good faith, fair dealing (regardless of whether considered and applied in a proceeding in equity or at law), and also to the possible unavailability of specific performance or injunctive relief, and (C) the unenforceability under certain circumstances of provisions indemnifying a party against liability or requiring contribution from a party for liability where such indemnification or contribution is contrary to public policy. (vii) The Notes are in due and proper form and when executed, authenticated and delivered as specified in the Indenture, and when delivered against payment of the consideration specified in this ~~Agreement are true~~ Agreement, they will be validly issued and ~~correct~~outstanding, ~~that~~ will constitute legal, valid and binding obligations of the ~~Province has complied~~ Issuer, enforceable against the Issuer in accordance with ~~all agreements~~ their terms and ~~satisfied all conditions on its part to~~ will be ~~performed or satisfied at or prior~~ entitled to the ~~Closing Date~~benefits of the Indenture, subject to (A) the effect of bankruptcy, insolvency, moratorium, receivership, reorganization, liquidation and other similar laws affecting creditors' rights generally, (B) the effect of general principles of equity including (without limitation) concepts of materiality, reasonableness, good faith, fair dealing (regardless of whether considered and applied in a proceeding in equity or at law), and also to the possible unavailability of specific performance or injunctive relief, (C) the unenforceability under certain circumstances of provisions indemnifying a party against liability or requiring contribution from a party for liability where such indemnification or contribution is contrary to public policy and (D) certain remedial provisions of the Indenture may be unenforceable in whole or in part under the UCC, but the inclusion of such provisions does not render the other provisions of the Indenture invalid and notwithstanding that such provisions may be unenforceable in whole or in part, the Indenture Trustee, on behalf of the Noteholders, will be able to enforce the remedies of a secured party under the UCC. (viii) The Collateral Certificate is in due and proper form, validly issued and outstanding and constitutes the legal, valid and binding obligation of the Certificate Trust, enforceable against the Certificate Trust in accordance with its terms and is entitled to the benefits of the Pooling and Servicing Agreement, subject to (A) the effect of bankruptcy, insolvency, moratorium, receivership, reorganization, liquidation and other similar laws affecting creditors' rights generally, (B) the effect of general principles of equity including (without limitation) concepts of materiality, reasonableness, good faith, fair dealing (regardless of whether considered and applied in a proceeding in equity or at law), and also to the possible unavailability of specific performance or injunctive relief, and (C) the unenforceability under certain circumstances of provisions indemnifying a party against liability or requiring contribution from a party for liability where such indemnification or contribution is contrary to public policy. (ix) The Registration Statement has become effective under the Act, and the Preliminary Prospectus and the Prospectus have been filed with the Commission pursuant to Rule 424(b) thereunder in the manner and within the time period required by Rule 424(b). To the best of such firm's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened or contemplated by the ~~SEC~~Commission. i(x) The ~~purchase and sale~~ statements in the Base Prospectus under the headings "Risk Factors--If a conservator or receiver were appointed for First National Bank of Omaha, or if we become a debtor in a bankruptcy case, delays or reductions in payment of your notes could occur," "Material Legal Aspects of the ~~Securities~~ Receivables," "ERISA Considerations" and "Federal Income Tax Consequences" and the statements in ~~accordance with~~ the ~~provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada,~~ Preliminary Prospectus Supplement and the ~~United States of America,~~ Prospectus Supplement under the ~~Province or the State of New York. j) The Province shall have furnished~~ headings "Structural Summary--Tax Status" and "--ERISA Considerations" to the ~~Underwriters and to counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. k) Subsequent to the execution~~ extent that they constitute matters of ~~this Agreement and prior to the Closing Date~~law or legal conclusions with respect thereto, ~~there shall not have occurred any downgrading, nor shall any notice~~ have been ~~given of any intended or potential downgrading or of any placing on credit watch with negative implications,~~ reviewed by us and are correct in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The Province will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreementmaterial respects.

Appears in 1 contract

Samples: Underwriting Agreement (First National Master Note Trust)

Conditions of the Obligations of the Underwriters. The ~~respective~~ several obligations of the ~~several~~ Underwriters to purchase and pay for the ~~Securities~~ Notes will be subject to the accuracy of the representations and warranties ~~on the part of the Province~~ made herein~~, to the accuracy of the statements of the representatives of the Province made pursuant to the provisions hereof~~, to the performance by the ~~Province~~ Depositor and Verizon Wireless of ~~its~~ their obligations ~~hereunder and with regard to the Securities~~ hereunder, and to the following additional conditions precedent: (a) ~~Prior~~ On the Closing Date, each of the Transaction Documents shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully conformed copy of the Notes and Certificates, and the Notes shall have been duly executed and delivered by the Trust and duly authenticated by the Indenture Trustee. The Transaction Documents shall be substantially in the forms heretofore provided to the Representatives. (b) On or before the Closing Date, the Underwriters shall have received the Accountant’s Due Diligence Report and letters, dated as of the date of the Preliminary Prospectus and Prospectus, respectively, of the Accounting Firm, substantially in the form of the drafts to which the Representatives have agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Underwriters and counsel to the Underwriters. (c) The Prospectus and any supplements thereto shall have been filed (if required) with the Commission in accordance with the Rules and Regulations; and, before the Closing Date, no stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Province~~ Depositor or the ~~Representatives~~Underwriters, shall be contemplated by the ~~SEC; and each Issuer Free Writing Prospectus, to~~ Commission or by any authority administering any state securities or blue sky law. (d) Since the ~~extent required by Rule 433 under~~ respective dates as of which information is given in the ~~Securities Act, shall have been filed with the SEC under the Securities Act;~~ Preliminary Prospectus and the ~~Final~~ Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this Agreement. b) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have ~~occurred~~ been (i) any material adverse change in the ~~financial~~business, ~~economic~~ business prospects, properties, financial condition, or ~~political condition~~ results of operations of Verizon Wireless and its subsidiaries, including the ~~Province from that~~ Depositor and the Trust, taken as a whole, or (ii) any development involving a prospective material adverse change in or affecting the Receivables or the servicing or origination business of Verizon Wireless, in each case other than as set forth or contemplated in the ~~Registration Statement, the Time of Sale Information~~ Preliminary Prospectus and the ~~Final~~ Prospectus; and the Underwriters shall have received, on the Closing Date, a certificate dated the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth in the first clause of this Section 9(b). c(e) The Underwriters shall have received an opinion or opinions of in-house counsel to the ~~Attorney General~~ Depositor and Verizon Wireless, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (f) The Underwriters shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the ~~Province~~Depositor, Verizon Wireless and the ~~Deputy Attorney General of the Province~~Trust, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory addressed to the Representatives, ~~as Canadian~~ dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the ~~Province~~Underwriters, addressing (i) corporate, enforceability and securities law matters, (ii) the enforceability of the Notes, (iii) certain true sale and nonconsolidation bankruptcy matters, (iv) bankruptcy proceedings of Verizon Wireless with respect to preference matters, (v) bankruptcy proceedings of Verizon Wireless and the impact of Annual Upgrade Offers, (vi) certain security interest matters and (vii) certain United States federal income tax matters. (g) The Underwriters shall have received one or more negative assurance letters of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Trust, the Depositor and Verizon Wireless, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (h) The Underwriters shall have received an opinion or opinions, addressed to the Underwriters, of Xxxxxxxx, Xxxxxx & Xxxxxx, P.A., counsel to the Indenture Trustee, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (i) The Underwriters shall have received an opinion or opinions, addressed to the Underwriters, of Xxxxxx Xxxxx LLP, counsel to the Owner Trustee, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (j) The Underwriters shall have received an opinion or opinions, addressed to the Underwriters, of Xxxxxx Xxxxx XXX, special Delaware counsel for the Trust, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (k) The Underwriters shall have received an opinion or opinions, addressed to the Underwriters, of Xxxxxx Xxxxx XXX, special Delaware counsel to the Depositor, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (l) The Underwriters shall have received an opinion or opinions, addressed to the Underwriters, of Xxxxxx Xxxxx XXX, special Delaware counsel to the Master Trust, dated as of the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (m) The Underwriters shall have received an opinion or opinions, addressed to the Underwriters, of Bass, Xxxxx & Xxxx PLC, counsel to the Asset Representations Reviewer, dated the Closing Date, and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (n) The Underwriters shall have received one or more negative assurance letters of Xxxxx Xxxxx LLP, counsel for the Underwriters, addressed to the Underwriters. (o) The Underwriters shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Underwriters, dated the Closing Date, to the effect that ~~under~~ the ~~laws~~ Representatives and the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securitiesits date. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. dp) The Underwriters shall have received ~~an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada,~~ certificates dated the Closing ~~Date, as to the matters specified in subdivisions (i) through (vii)~~ Date of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) any one of the ~~Minister of Finance~~ President, Chief Financial Officer, any Vice President, the Controller, the Treasurer or Assistant Treasurer of the ~~Province, the Deputy Minister of Finance of the Province or another~~ Depositor and Verizon Wireless in which such officer ~~of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion~~ shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion, to the effect that: (i) The Securities are exempted securities under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of made by such entity contained in the ~~Province in~~ Transaction Documents and this Agreement are true and ~~correct~~correct in all material respects (except to the extent any such representation or warranty is already qualified by materiality, in which case such representation or warranty is true and correct in all respects), that ~~the Province~~ such party has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at under such agreements on or ~~prior~~ before the Closing Date in all material respects (except to the extent any such agreement or condition is already qualified by materiality, in which case such agreement or condition has been complied with or satisfied, as applicable, in all respects), (B) since the date of this Agreement there has not occurred (i) any material adverse change in the business, business prospects, properties, financial condition or results of operations of the Trust, the Depositor or Verizon Wireless or (ii) to the best of such officer’s knowledge, any development involving a prospective material adverse change in or affecting the Receivables or the servicing or origination business of Verizon Wireless, in each case except as disclosed to the Representatives in writing and (C) there are no actions, proceedings or investigations to which the Depositor or Verizon Wireless is a party or that are, to such party’s knowledge after due inquiry, threatened before any court, administrative agency or other tribunal having jurisdiction over Verizon Wireless or the Depositor, (i) asserting the invalidity of this Agreement, any Transaction Document or the Notes, (ii) seeking to prevent the issuance of the Notes or the consummation of any of the transactions contemplated by this Agreement or the Transaction Documents, (iii) which would reasonably be expected to have a Material Adverse Effect or (iv) seeking adversely to affect the federal income tax attributes of the Notes as described in the Prospectus or the Preliminary Prospectus under the heading “U.S. Tax Consequences.” (q) The Representatives shall have received evidence satisfactory to the Representatives and counsel to the Underwriters that, on or before the Closing Date, ~~that no stop order suspending~~ UCC-1 financing statements, have been or are being filed in all applicable governmental offices reflecting (A) the ~~effectiveness~~ transfer of the ~~Registration Statement has been issued~~ interest of the Originators in the related Receivables, and ~~no proceedings for that purpose~~ the proceeds thereof to the Depositor pursuant to the Originator Receivables Transfer Agreement, (B) the transfer of the interest of the Master Trust in the related Receivables and the proceeds thereof to the Depositor pursuant to the Master Trust Receivables Transfer Agreement, (C) the transfer of the interest of the Depositor in the Originator Receivables Transfer Agreement, the Master Trust Receivables Transfer Agreement, the Receivables and the proceeds thereof to the Trust pursuant to the Transfer and Servicing Agreement, and (D) the grant by the Trust to the Indenture Trustee under the Indenture of a security interest in the interest of the Trust in the Transfer and Servicing Agreement, the Receivables and the proceeds thereof. (r) The Class A-1a Notes shall have been ~~instituted or are contemplated~~ rated at least AAA (sf) by ~~the SEC~~S&P Global Ratings (“S&P”) and at least Aaa (sf) by Xxxxx’x Investors Service, Inc. (“Moody’s”). The Class A-1b Notes shall have been rated at least AAA (sf) by S&P and at least Aaa (sf) by Moody’s. The Class B Notes shall have been rated at least AA+ (sf) by S&P and at least Aa1 (sf) by Moody’s. The Class C Notes shall have been rated at least A+ (sf) by S&P and at least Aa3 (sf) by Moody’s. (s) The Underwriters shall have received, from each of Verizon Wireless, Verizon, the Originators and the Depositor, a certificate executed by a secretary or assistant secretary thereof (or the equivalent) to which shall be attached certified copies of the: (i) formation and governing documents, (ii) applicable resolutions and (iii) designation of incumbency of each such entity. The ~~purchase and sale~~ Underwriters shall have received, from the Trust, a certified copy of the ~~Securities in accordance with~~ certificate of formation and an executed copy of the ~~provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority~~ trust agreement evidencing formation of ~~Canada,~~ the ~~United States of America, the Province or the State of New York~~trust. j(t) The ~~Province~~ Representatives shall have ~~furnished~~ received evidence of any required Lien releases to be filed or recorded (immediately following the Closing Date) with respect to the ~~Underwriters~~ Permitted Liens affecting the Receivables from all applicable creditors of Verizon Wireless, in form and substance satisfactory to ~~counsel for the Underwriters such further certificates and documents as~~ the Representatives and ~~such~~ counsel ~~reasonably request~~to the Underwriters. k(u) ~~Subsequent~~ All representations and warranties made by or on behalf of Verizon Wireless and the Depositor in the Transaction Documents to which each is a party are true and correct in all material respects as of the Closing Date. (v) The Underwriters shall have received an opinion of in-house counsel to the ~~execution~~ Cap Counterparty, addressed to the Representatives, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters, addressing the enforceability of ~~this Agreement and prior to~~ the Cap Agreement. (w) The Representatives shall have received a certificate, dated the Closing Date, ~~there shall not have occurred~~ signed by an authorized officer or any ~~downgrading, nor shall any notice have been given~~ Vice President of ~~any intended or potential downgrading or of any placing on credit watch with negative implications~~the Indenture Trustee, in which such officer shall state that the ~~ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency~~ information contained in the ~~United States. All such opinions, certificates, letters~~ Form T-1 for the Indenture Trustee is true and ~~documents will be in compliance~~ accurate as of its filing with the ~~provisions hereof only if they are reasonably satisfactory~~ Commission. The Depositor will provide or cause to be provided to the ~~Representatives. The Province will furnish the~~ Underwriters ~~with such~~ conformed copies of such opinions, certificates, letters and documents as the ~~Representatives~~ Underwriters or counsel to the Underwriters reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.

Appears in 1 contract

Samples: Underwriting Agreement (Verizon Owner Trust 2019-B)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the ~~several~~ Underwriters to purchase and pay for the ~~Securities~~ Notes will be subject to the ~~accuracy~~ accuracy, as of the date hereof and as of the Closing Date, of the representations and warranties on of Collegiate Funding and the ~~part of the Province~~ Sponsor herein, to the accuracy of the written statements of officers of Collegiate Funding, the ~~representatives of~~ Sponsor, the ~~Province~~ Sellers, the Master Servicer, the Administrator, the Sub-Servicer, the Custodian, the Originating Agent, the Delaware Trustee, the Indenture Trustee and the Eligible Lender Trustee made pursuant to the provisions ~~hereof~~of this Section, to the performance by Collegiate Funding and the ~~Province~~ Sponsor of ~~its~~ their obligations hereunder ~~and with regard to the Securities~~ and to the following additional conditions precedent: (a) ~~Prior~~ The Underwriters shall have received a letter, of Ernst & Young, LLP, dated on or prior to the date hereof, confirming that such accountants are independent public accountants within the meaning of the Act, and substantially in the form of the drafts to which the Underwriters have previously agreed and otherwise in form and substance satisfactory to the Underwriters and counsel for the Underwriters (i) regarding certain numerical information contained in the Prospectus and (ii) relating to certain agreed-upon procedures. (b) The Prospectus shall have been filed with the Commission in accordance with the Act and Section 5(a) hereof. On or prior to the Closing Date, no stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statements shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Province or the Representatives~~Sponsor, shall be contemplated by the SEC; and each Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act, shall have been filed with the SEC under the Securities Act; and the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this AgreementCommission. b(c) Subsequent to the execution and delivery of this ~~Agreement and prior to the Closing Date~~Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the Financed Student Loans or particularly the business or properties of the Trust, Collegiate Funding, the Sponsor, the Sellers, the Master Servicer, the Sub-Servicer, the Custodian, the Originating Agent or the Administrator, which, in the sole discretion of the Underwriters, materially impairs the investment quality of the Notes; (ii) any downgrading in the rating of any securities of Collegiate Funding, the Sponsor, the Sellers, the Master Servicer, the Sub-Servicer, the Custodian or the Originating Agent, 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 such debt securities (other than an 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, American Stock Exchange, or NASDAQ National Market, or any setting of minimum or maximum prices for trading on such exchange; (iv) any banking moratorium declared by Federal or New York authorities; (v) any outbreak or escalation of hostilities in which the United States is involved, any declaration of war or national emergency by Congress, any material ~~adverse~~ disruption in the financial markets or any other substantial national or international calamity or emergency if, in the sole judgment of the Underwriters, the effect of any such outbreak, escalation, declaration, material disruption, calamity or emergency makes it impractical or inadvisable to proceed with the public offering or the delivery of the Notes as contemplated by the Registration Statements, as amended as of the date hereof; (vi) a material disruption has occurred in securities settlement or clearance services in the United States; or (vii) any event or development which makes any statement made in the Registration Statements or Prospectus untrue or which, in the opinion of the Sponsor or Collegiate Funding and their counsel or the Underwriters and their counsel, requires the filing of any amendment to or change in the ~~financial~~Registration Statements or Prospectus in order to state a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, ~~economic~~ if amending or ~~political condition~~ supplementing the Registration Statements or Prospectus to reflect such event or development would, in the opinion of the ~~Province from that set forth in~~ Representatives, materially adversely affect the ~~Registration Statement,~~ market for the ~~Time of Sale Information and the Final Prospectus; and the Underwriters shall have received, on~~ Notes. (d) On the Closing Date, ~~a certificate dated the Closing Date and signed by the Minister of Finance~~ each of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth in the first clause of this Section 9(b). c) The Underwriters shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Province, dated the Closing Date, to the effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (ii) This Agreement Basic Documents and the ~~Fiscal Agency Agreement~~ Notes shall have been duly authorized, executed and delivered by the ~~Province and each is a valid and legally binding agreement of the Province~~parties thereto, ~~except as rights to indemnity and contribution hereunder may~~ shall be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and ~~effect~~effect and no default shall exist thereunder, and the Indenture Trustee and the Underwriters shall each have received a fully executed copy thereof or, with respect to the Notes, a conformed copy thereof. The Basic Documents and the Notes shall be substantially in the forms heretofore provided to the Underwriters. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. de) The Underwriters shall have received an opinion of ~~Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada~~XxXxxxx Xxxx, dated the Closing ~~Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications~~ Date and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance ~~satisfactory~~ to ~~them and they believe that~~ the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinionUnderwriters, to the effect that: (i) ~~The Securities are exempted securities~~ Each of Collegiate Funding, the Master Servicer and the Administrator has been duly formed and is validly existing as a limited liability company in good standing under the ~~Trust Indenture Act~~ laws of ~~1939~~its jurisdiction of organization, ~~as amended (the “Trust Indenture Act”)~~with full power and authority to own its properties and conduct its business, and ~~no qualification~~ is duly qualified to transact business and is in good standing in each jurisdiction in which its failure to qualify would have a material adverse effect upon transactions contemplated by the Basic Documents and its business or the ownership of ~~an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities.~~ its property. (ii) ~~The statements~~ Each of the Basic Documents to which Collegiate Funding, the Master Servicer or the Administrator is a party is the legal, valid and binding obligation of Collegiate Funding, the Master Servicer and the Administrator, as applicable, enforceable against Collegiate Funding, the Master Servicer and the Administrator in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. accordance with its terms. (iii) ~~The statements~~ Neither the execution, delivery and performance by Collegiate Funding, the Master Servicer or the Administrator, respectively, of the Basic Documents to which it is a party, nor the consummation by Collegiate Funding, the Master Servicer or the Administrator, as applicable, of the transactions contemplated thereby, will conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the ~~Time~~ creation or imposition of ~~Sale Information~~any lien, ~~and Final Prospectus under “Description~~ charge or encumbrance upon any of ~~Debt Securities and Warrants — United States Federal Income Taxation”~~the property or assets of Collegiate Funding, the Master Servicer or the Administrator, as ~~supplemented by “Tax Matters — United States Taxation”~~applicable, pursuant to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives terms of the ~~Province~~formation documents of Collegiate Funding, ~~counsel for~~ the ~~Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A)~~ Master Servicer or the ~~Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom~~Administrator, as ~~to which such counsel has not been requested to comment)~~applicable, ~~as of the date of this Agreement, contained an untrue statement of a material fact~~ or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of the Province in this Agreement are true and correct, that the Province has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the SEC. i) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, ~~order~~rule, ~~rule~~ regulation or ~~regulation promulgated by~~ order of any ~~legislative~~governmental agency or body, ~~executive~~ or ~~regulatory body or authority of Canada~~any court having jurisdiction over Collegiate Funding, the ~~United States of America~~Master Servicer or the Administrator, as applicable, or its properties, or any agreement or instrument known to such counsel after due investigation to which Collegiate Funding, the ~~Province~~ Master Servicer or the ~~State of New York. j) The Province shall have furnished to~~ Administrator, as applicable, is a party or by which Collegiate Funding, the ~~Underwriters and to counsel for~~ Master Servicer or the ~~Underwriters such further certificates and documents~~ Administrator, as ~~the Representatives and such counsel reasonably request. k) Subsequent to the execution of this Agreement and prior to the Closing Date~~applicable, ~~there shall not have occurred any downgrading, nor shall any notice have been given of any intended~~ or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The Province will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreementits properties is bound.

Appears in 1 contract

Samples: Underwriting Agreement (Collegiate Funding of Delaware LLC)

Conditions of the Obligations of the Underwriters. The ~~respective~~ several obligations of the ~~several~~ Underwriters to purchase the Firm Shares on the Closing Date and ~~pay for~~ the ~~Securities will be~~ Option Shares, if any, on an Option Closing Date are subject to the ~~accuracy~~ accuracy, as of the Closing Date or the Option Closing Date, as the case may be, of the representations and warranties ~~on the part~~ of the ~~Province~~ Company contained herein, ~~to the accuracy of the statements of the representatives of the Province made pursuant to the provisions hereof,~~ and to the performance in all material respects by the ~~Province~~ Company of its covenants and obligations hereunder ~~and with regard to the Securities~~ and to the following additional ~~conditions precedent~~conditions: (a) ~~Prior~~ The Registration Statement and any post-effective amendment thereto shall have become effective and any and all filings required by Rule 424 and Rule 430A of the Rules and Regulations shall have been made, and any request of the Commission for additional information (to be included in the Registration Statement or otherwise) shall have been disclosed to the ~~Closing Date, no~~ Representatives and complied with to their reasonable satisfaction. No stop order suspending the effectiveness of the Registration Statement, as amended from time to time, shall have been issued and no proceedings for that purpose shall have been ~~instituted~~ taken or, to the knowledge of the ~~Province or the Representatives~~Company, shall be contemplated by the ~~SEC;~~ Commission and ~~each Issuer Free Writing Prospectus~~no injunction, ~~to the extent required~~ restraining order or order of any nature by ~~Rule 433 under the Securities Act,~~ a Federal or state court of competent jurisdiction shall have been filed with the SEC under the Securities Act; and the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this Agreement. b) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any material adverse change in the financial, economic or political condition of the Province from issued that set forth in the Registration Statement, the Time of Sale Information and the Final Prospectus; and the Underwriters shall have received, on the Closing Date, a certificate dated the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth in the first clause of this Section 9(b). c) The Underwriters shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Province, dated the Closing Date, to the effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, would prevent the issuance of the ~~Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect~~Shares. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vib) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters Representatives shall have received ~~an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated~~ on the Closing Date or the Option Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, ~~Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereon. e) The Underwriters shall have received~~ the opinion of ~~Sxxxxxxx~~ Xxxxx, Day, Xxxxxx & ~~Sterling LLP~~Xxxxx, ~~United States~~ counsel for the ~~Province~~Company, dated the Closing Date or the Option Closing Date, ~~subject~~ as the case may be, addressed to ~~such qualifications and based upon such assumptions as are customary in~~ the ~~United States in respect of such opinion,~~ Underwriters to the effect that: (i) The ~~Securities are exempted securities~~ Company has been duly incorporated and is validly existing as a corporation in good standing under the ~~Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect~~ laws of the ~~Securities~~ State of Delaware, with corporate power and authority to own or lease its properties and conduct its business as described in the Prospectus; each of the Subsidiaries that has been created or organized in or under the ~~Trust Indenture Act is required for the issuance, sale and delivery~~ laws of the ~~Securities~~United States has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, with corporate power and authority to own or lease its properties and conduct its business as described in the Prospectus, if so described. (ii) The ~~statements~~ Company has an authorized capitalization as set forth in the ~~Time~~ Prospectus. [The issued and outstanding shares of ~~Sale Information~~ Common Stock have been duly authorized and ~~Final~~ validly issued and are fully paid and non- assessable. ] The Shares conform to the description thereof contained in the Prospectus. The certificates evidencing the Common Stock comply in all material respects with the requirements of the General Corporation Law of the State of Delaware. The Shares, including the Option Shares, if any, to be sold by the Company pursuant to this Agreement have been duly authorized and, when issued and paid for as contemplated by this Agreement, will be validly issued, fully paid and non-assessable. Except as disclosed in the Prospectus, there are no preemptive rights of stockholders under the Company's Third Amended and Restated Certificate of Incorporation or Amended and Restated Bylaws or any other instrument filed as an exhibit to (1) the Registration Statement or (2) any report incorporated by reference in the Prospectus filed prior to the date of such opinion. (iii) To the knowledge of such counsel, the Registration Statement became effective under “the Act as of the date specified in the opinion and no stop order proceedings with respect thereto have been instituted or are pending or threatened by the Commission. (iv) The Registration Statement (on the date it was declared effective) and each report incorporated by reference therein and filed prior to the date of such opinion (as of the date such report was filed with the Commission) complied as to form in all material respects with the requirements of the Act or the Exchange Act, as applicable, and the applicable rules and regulations (except that such counsel need express no opinion as to the operating statistics, the financial statements, related schedules and other statistical and financial data included or incorporated by reference therein and except for the information referred to under the caption "Experts" as having been included in the Prospectus on the authority of Ernst & Young LLP as experts). (v) The statements under the caption "Description of ~~Bonds” and “Description of Debt Securities and Warrants”~~Capital Stock" in the Prospectus, insofar as such statements ~~constitute a summary~~ purport to summarize the provisions of documents referred to therein, ~~fairly summarize~~ present fair summaries of such provisions and, insofar as they purport to describe matters of law, are accurate in all material ~~respects the documents referred to therein~~respects. (~~iii~~vi) Such counsel does not know of any contracts or documents required to be filed as exhibits to the Registration Statement or to any report incorporated by reference in the Prospectus filed prior to the date of such opinion or required to be described in the Prospectus that are not so filed or described as required, and statements contained in the Prospectus, insofar as they purport to summarize the provisions of such contracts and documents, present fair summaries of such provisions. (vii) The ~~statements~~ execution and delivery of this Agreement and the consummation of the transactions herein contemplated do not and will not conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, the charter or bylaws of the Company or any of the Subsidiaries (other than those incorporated in jurisdictions outside the United States), or any agreement or instrument filed as an exhibit to (1) the Registration Statement, or (2) any report incorporated by reference in the ~~Time~~ Prospectus prior to the date of ~~Sale Information~~such opinion. (viii) This Agreement has been duly authorized, executed and delivered by the Company. (ix) No Consent by or with any regulatory, administrative or other governmental body is necessary in connection with the execution and delivery of this Agreement by the Company and the consummation of the transactions herein contemplated by the Company (other than as may be required under the Act and the Rules and Regulations, the Exchange Act and the rules and regulations thereunder, the bylaws of the NASD, state securities and Blue Sky laws or foreign laws or under any contract to which any governmental entity is a party, as to which such counsel need express no opinion) except such as have been obtained or made. (x) The Company is not, and ~~Final Prospectus~~ will not become, solely as a result of the consummation of the transactions contemplated by this Agreement and application of the net proceeds therefrom as described in the Prospectus, required to register as an investment company under ~~“Description of Debt Securities and Warrants — United States Federal Income Taxation”~~the Investment Company Act. Such counsel shall also have furnished to the Representatives a written statement, dated the Closing Date or the Option Closing Date, as ~~supplemented by “Tax Matters — United States Taxation”~~the case may be, addressed to the Underwriters, to the ~~extent~~ effect that ~~they constitute summaries~~ (i) such counsel has participated in the preparation of ~~legal matters referred to therein, fairly summarize in all material respects~~ the ~~legal matters referred to therein.~~ Registration Statement and (ivii) ~~Based~~ based upon such ~~counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents~~participation, no facts have come to ~~such counsel’s~~ the attention ~~which caused~~ of such counsel which lead it to believe that ~~(A)~~ the Registration Statement (other than the operating statistics, financial ~~statements~~ statements, related schedules and other statistical and financial data ~~contained therein or omitted therefrom~~included therein, as to which such counsel ~~has~~ need express no view), as of the time it became effective under the Act, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements therein not ~~been requested~~ misleading, or that the Prospectus (other than the operating statistics, financial statements, related schedules and other statistical and financial data included therein, as to ~~comment~~which such counsel need express no view), as of the date of ~~this Agreement~~such written statement, contains any untrue statement of a material fact or omits to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. The foregoing opinion and statement may be qualified by a statement to the effect that such counsel has not independently verified the accuracy, completeness or fairness of the statements contained in the Registration Statement or the Prospectus (including any report or other document incorporated or deemed to be incorporated by reference therein). (c) The Representatives shall have received from Xxxxxx & Xxxxxx L.L.P., counsel for the Underwriters, an opinion dated the Closing Date or the Option Closing Date, as the case may be, substantially to the effect specified in subparagraphs (ii), (iii) and (vii) of Section 6(b). In addition to the matters set forth above, such opinion shall also include a statement to the effect that nothing has come to the attention of such counsel that leads them to believe that (i) the Registration Statement, or any amendment thereto, as of the time it became effective under the Act (but after giving effect to any modifications incorporated therein pursuant to Rule 430A under the Act) and as of the Closing Date or the Option Closing Date, as the case may be, 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;~~ misleading and (Bii) the ~~Time of Sale Information (other than~~ Prospectus, or any supplement thereto, on the ~~financial statements~~ date it was filed pursuant to the Rules and ~~other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment),~~ Regulations and as of the ~~Time of Sale~~Closing Date or the Option Closing Date, as the case may be, contains or contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements contained therein, in the light of the circumstances under which they ~~were~~ are made, not ~~misleading; or~~ misleading (~~C) the Final Prospectus (other than the~~ except that such counsel need express no view as to operating statistics, financial ~~statements~~ statements, related schedules and other statistical and financial ~~data~~ information contained ~~therein or omitted therefrom, as~~ therein). The foregoing opinion and statement may be qualified by a statement to ~~which~~ the effect that such counsel has not ~~been requested to comment)~~independently verified the accuracy, as completeness or fairness of ~~its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make~~ the statements ~~therein,~~ contained in ~~the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion,~~ the Registration Statement ~~and~~ or the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunderProspectus. f(d) The ~~Underwriters~~ Representatives shall have received ~~an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated~~ at or prior to the Closing ~~Date~~Date from Xxxxxx & Xxxxxx L.L.P. a memorandum or summary, ~~subject to such qualifications~~ in form and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province substance satisfactory to the Representatives, ~~dated~~ with respect to the qualification for offering and sale by the Underwriters of the Shares under the state securities or Blue Sky laws of such jurisdictions as the Representatives may reasonably have designated to the Company. (e) The Representatives shall have received, on each of the date hereof, the Closing Date and the Option Closing Date~~, in which such Minister, Deputy Minister or other officer~~, as the case may be, to a letter dated the ~~best of his~~ date hereof, the Closing Date or ~~her knowledge after reasonable investigation, shall state that~~ the representations and warranties of the Province in this Agreement are true and correct, that the Province has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Option Closing Date, as the case may be, in form and substance reasonably satisfactory to the Representatives, of Ernst & Young LLP confirming that they are independent public accountants within the meaning of the Act and the applicable published Rules and Regulations thereunder and stating that in their opinion the financial statements and schedules examined by them and included in the Registration Statement comply in form in all material respects with the applicable accounting requirements of the Act and the related published Rules and Regulations, and containing such other statements and information as is ordinarily included in accountants' "comfort letters" to Underwriters with respect to the financial statements and certain financial and statistical information contained in the Registration Statement and Prospectus. (f) The Representatives shall have received on the Closing Date or the Option Closing Date, as the case may be, a certificate or certificates signed by the Chief Executive Officer and the Chief Financial Officer of the Company to the effect that, as of the Closing Date or the Option Closing Date, as the case may be, each of them represents on behalf of the Company as follows: (i) The Registration Statement has become effective under the Act, no stop order suspending the effectiveness of the Registration Statement has been ~~issued and~~ issued, and, to such officer's knowledge, no proceedings for ~~that~~ such purpose have been ~~instituted~~ taken or are contemplated by the ~~SEC.~~Commission; i(ii) The ~~purchase~~ representations and ~~sale~~ warranties of the ~~Securities~~ Company contained in ~~accordance with~~ Section 1(a) hereof are true and correct as of the ~~provisions hereof shall not be prohibited by any statute~~Closing Date or the Option Closing Date, ~~order~~as the case may be; (iii) All filings required to have been made pursuant to Rules 424 or 430A under the Act have been made; (iv) Such officer has examined the Registration Statement and the Prospectus and, ~~rule or regulation promulgated by any legislative~~to such officer's knowledge, ~~executive or regulatory body or authority~~ (1) as of ~~Canada~~the effective date of the Registration Statement, the ~~United States~~ Registration Statement and Prospectus did not include any untrue statement of ~~America, the Province~~ a material fact and did not omit to state a material fact required to be stated therein or ~~the State of New York.~~necessary in order to j(g) The ~~Province~~ Company shall have furnished to the ~~Underwriters and to counsel for the Underwriters~~ Representatives such further certificates and documents confirming the representations and warranties, covenants and conditions contained herein and related matters as the Representatives ~~and such counsel~~ may reasonably ~~request~~have requested. k(h) ~~Subsequent~~ The Shares shall have been approved for listing upon official notice of issuance on the New York Stock Exchange. (i) The Lockup Agreements described in Section 4(j) shall have been executed and delivered to the ~~execution of~~ Representatives. The opinions and certificates mentioned in this Agreement ~~and prior~~ shall be deemed to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the ~~Representatives. The Province will furnish~~ Representatives and to Xxxxxx & Xxxxxx L.L.P., counsel for the ~~Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request~~Underwriters. If any of the ~~above~~ conditions hereinabove provided for in this Section 6 shall not have been fulfilled when and as ~~reasonably contemplated herein~~required by this Agreement, ~~this Agreement and all~~ the obligations of the Underwriters hereunder may be terminated ~~with respect~~ by the Representatives by notifying the Company of such termination in writing or by telegram at or prior to ~~Securities at, or at any time prior to,~~ the Closing Date by or the ~~Representatives on behalf of~~ Option Closing Date, as the ~~Underwriters~~case may be. In such event, ~~without~~ the Company and the Underwriters shall not be under any ~~liability on the part of any Underwriter~~ obligation to each other (except to the ~~Province or of the Province to any Underwriter, except as~~ extent provided in ~~Section 6, Section 10~~ Sections 5 and ~~Section 13~~ 8 hereof~~. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement~~).

Appears in 1 contract

Samples: Underwriting Agreement (Sterling Commerce Inc)

Conditions of the Obligations of the Underwriters. The ~~respective~~ several obligations of the ~~several~~ Underwriters to purchase and pay for the ~~Securities~~ Notes will be subject to the accuracy of the representations and warranties ~~on the part of the Province~~ made herein~~, to the accuracy of the statements of the representatives of the Province made pursuant to the provisions hereof~~, to the performance by the ~~Province~~ Depositor and Verizon Wireless of ~~its~~ their obligations ~~hereunder and with regard to the Securities~~ hereunder, and to the following additional conditions precedent: (a) ~~Prior~~ On the Closing Date, each of the Transaction Documents shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully conformed copy of the Notes and Certificates, and the Notes shall have been duly executed and delivered by the Trust and duly authenticated by the Indenture Trustee. The Transaction Documents shall be substantially in the forms heretofore provided to the Representatives. (b) On or before the Closing Date, the Underwriters shall have received the Accountant’s Due Diligence Report and letters, dated as of the date of the Preliminary Prospectus and Prospectus, respectively, of the Accounting Firm, substantially in the form of the drafts to which the Representatives have agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Underwriters and counsel to the Underwriters. (c) The Prospectus and any supplements thereto shall have been filed (if required) with the Commission in accordance with the Rules and Regulations; and, before the Closing Date, no stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Province~~ Depositor or the ~~Representatives~~Underwriters, shall be contemplated by the ~~SEC; and each Issuer Free Writing Prospectus, to~~ Commission or by any authority administering any state securities or blue sky law. (d) Since the ~~extent required by Rule 433 under~~ respective dates as of which information is given in the ~~Securities Act, shall have been filed with the SEC under the Securities Act;~~ Preliminary Prospectus and the ~~Final~~ Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this Agreement. b) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have ~~occurred~~ been (i) any material adverse change in the ~~financial~~business, ~~economic~~ business prospects, properties, financial condition, or ~~political condition~~ results of operations of Verizon Wireless and its subsidiaries, including the ~~Province from that~~ Depositor and the Trust, taken as a whole, or (ii) any development involving a prospective material adverse change in or affecting the Receivables or the servicing or origination business of Verizon Wireless, in each case other than as set forth or contemplated in the ~~Registration Statement, the Time of Sale Information~~ Preliminary Prospectus and the ~~Final~~ Prospectus; and the Underwriters shall have received, on the Closing Date, a certificate dated the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth in the first clause of this Section 9(b). c(e) The Underwriters shall have received an opinion or opinions of in-house counsel to the ~~Attorney General~~ Depositor and Verizon Wireless, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (f) The Underwriters shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the ~~Province~~Depositor, Verizon Wireless and the ~~Deputy Attorney General of the Province~~Trust, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory addressed to the Representatives, ~~as Canadian~~ dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the ~~Province~~Underwriters, addressing (i) corporate, enforceability and securities law matters, (ii) the enforceability of the Notes, (iii) certain true sale and nonconsolidation bankruptcy matters, (iv) bankruptcy proceedings of Verizon Wireless with respect to preference matters, (v) bankruptcy proceedings of Verizon Wireless and the impact of Annual Upgrade Offers, (vi) certain security interest matters and (vii) certain United States federal income tax matters. (g) The Underwriters shall have received one or more negative assurance letters of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Trust, the Depositor and Verizon Wireless, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (h) The Underwriters shall have received an opinion or opinions, addressed to the Underwriters, of Xxxxxxxx, Xxxxxx & Xxxxxx, P.A., counsel to the Indenture Trustee, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (i) The Underwriters shall have received an opinion or opinions, addressed to the Underwriters, of Xxxxxx Xxxxx LLP, counsel to the Owner Trustee, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (j) The Underwriters shall have received an opinion or opinions, addressed to the Underwriters, of Xxxxxx Xxxxx XXX, special Delaware counsel for the Trust, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (k) The Underwriters shall have received an opinion or opinions, addressed to the Underwriters, of Xxxxxx Xxxxx XXX, special Delaware counsel to the Depositor, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (l) The Underwriters shall have received an opinion or opinions, addressed to the Underwriters, of Xxxxxx Xxxxx XXX, special Delaware counsel to the Master Trust, dated as of the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (m) The Underwriters shall have received an opinion or opinions, addressed to the Underwriters, of Bass, Xxxxx & Xxxx PLC, counsel to the Asset Representations Reviewer, dated the Closing Date, and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (n) The Underwriters shall have received one or more negative assurance letters of Xxxxx Xxxxx LLP, counsel for the Underwriters, addressed to the Underwriters. (o) The Underwriters shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Underwriters, dated the Closing Date, to the effect that ~~under~~ the ~~laws~~ Representatives and the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securitiesits date. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. dp) The Underwriters shall have received ~~an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada,~~ certificates dated the Closing ~~Date, as to the matters specified in subdivisions (i) through (vii)~~ Date of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) any one of the ~~Minister of Finance~~ President, Chief Financial Officer, any Vice President, the Controller, the Treasurer or Assistant Treasurer of the ~~Province, the Deputy Minister of Finance of the Province or another~~ Depositor and Verizon Wireless in which such officer ~~of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion~~ shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion, to the effect that: (i) The Securities are exempted securities under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that : (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of made by such entity contained in the ~~Province in~~ Transaction Documents and this Agreement are true and ~~correct~~correct in all material respects (except to the extent any such representation or warranty is already qualified by materiality, in which case such representation or warranty is true and correct in all respects), that ~~the Province~~ such party has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at under such agreements on or ~~prior~~ before the Closing Date in all material respects (except to the extent any such agreement or condition is already qualified by materiality, in which case such agreement or condition has been complied with or satisfied, as applicable, in all respects), (B) since the date of this Agreement there has not occurred (i) any material adverse change in the business, business prospects, properties, financial condition or results of operations of the Trust, the Depositor or Verizon Wireless or (ii) to the best of such officer’s knowledge, any development involving a prospective material adverse change in or affecting the Receivables or the servicing or origination business of Verizon Wireless, in each case except as disclosed to the Representatives in writing and (C) there are no actions, proceedings or investigations to which the Depositor or Verizon Wireless is a party or that are, to such party’s knowledge after due inquiry, threatened before any court, administrative agency or other tribunal having jurisdiction over Verizon Wireless or the Depositor, (i) asserting the invalidity of this Agreement, any Transaction Document or the Notes, (ii) seeking to prevent the issuance of the Notes or the consummation of any of the transactions contemplated by this Agreement or the Transaction Documents, (iii) which would reasonably be expected to have a Material Adverse Effect or (iv) seeking adversely to affect the federal income tax attributes of the Notes as described in the Prospectus or the Preliminary Prospectus under the heading “U.S. Tax Consequences.” (q) The Representatives shall have received evidence satisfactory to the Representatives and counsel to the Underwriters that, on or before the Closing Date, ~~that no stop order suspending~~ UCC-1 financing statements, have been or are being filed in all applicable governmental offices reflecting (A) the ~~effectiveness~~ transfer of the ~~Registration Statement has been issued~~ interest of the Originators in the related Receivables, and ~~no proceedings for that purpose~~ the proceeds thereof to the Depositor pursuant to the Originator Receivables Transfer Agreement, (B) the transfer of the interest of the Master Trust in the related Receivables and the proceeds thereof to the Depositor pursuant to the Master Trust Receivables Transfer Agreement, (C) the transfer of the interest of the Depositor in the Originator Receivables Transfer Agreement, the Master Trust Receivables Transfer Agreement, the Receivables and the proceeds thereof to the Trust pursuant to the Transfer and Servicing Agreement, and (D) the grant by the Trust to the Indenture Trustee under the Indenture of a security interest in the interest of the Trust in the Transfer and Servicing Agreement, the Receivables and the proceeds thereof. (r) The Class A Notes shall have been ~~instituted or are contemplated~~ rated at least AAA sf by ~~the SEC~~Fitch Ratings, Inc. (“Fitch”) and at least Aaa (sf) by Xxxxx’x Investors Service, Inc. (“Moody’s”). The Class B Notes shall have been rated at least AA sf by Fitch and at least Aa1 (sf) by Moody’s. The Class C Notes shall have been rated at least A sf by Fitch and at least Aa3 (sf) by Moody’s. (s) The Underwriters shall have received, from each of Verizon Wireless, Verizon, the Originators and the Depositor, a certificate executed by a secretary or assistant secretary thereof (or the equivalent) to which shall be attached certified copies of the: (i) formation and governing documents, (ii) applicable resolutions and (iii) designation of incumbency of each such entity. The ~~purchase and sale~~ Underwriters shall have received, from the Trust, a certified copy of the ~~Securities in accordance with~~ certificate of formation and an executed copy of the ~~provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority~~ trust agreement evidencing formation of ~~Canada,~~ the ~~United States of America, the Province or the State of New York~~trust. j(t) The ~~Province~~ Representatives shall have ~~furnished~~ received evidence of any required Lien releases to be filed or recorded (immediately following the Closing Date) with respect to the ~~Underwriters~~ Permitted Liens affecting the Receivables from all applicable creditors of Verizon Wireless, in form and substance satisfactory to ~~counsel for the Underwriters such further certificates and documents as~~ the Representatives and ~~such~~ counsel ~~reasonably request~~to the Underwriters. k(u) ~~Subsequent~~ All representations and warranties made by or on behalf of Verizon Wireless and the Depositor in the Transaction Documents to which each is a party are true and correct in all material respects as of the ~~execution of this Agreement and prior to~~ Closing Date. (v) [Reserved]. (w) The Representatives shall have received a certificate, dated the Closing Date, ~~there shall not have occurred~~ signed by an authorized officer or any ~~downgrading, nor shall any notice have been given~~ Vice President of ~~any intended or potential downgrading or of any placing on credit watch with negative implications~~the Indenture Trustee, in which such officer shall state that the ~~ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency~~ information contained in the ~~United States. All such opinions, certificates, letters~~ Form T-1 for the Indenture Trustee is true and ~~documents will be in compliance~~ accurate as of its filing with the ~~provisions hereof only if they are reasonably satisfactory~~ Commission. The Depositor will provide or cause to be provided to the ~~Representatives. The Province will furnish the~~ Underwriters ~~with such~~ conformed copies of such opinions, certificates, letters and documents as the ~~Representatives~~ Underwriters or counsel to the Underwriters reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.

Appears in 1 contract

Samples: Underwriting Agreement (Verizon Owner Trust 2020-B)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the several Underwriters to purchase and pay for the ~~Securities~~ Notes will be subject to the accuracy of the representations and warranties on the part of the ~~Province~~ Corporation herein, to the accuracy of the statements of ~~the representatives~~ officers of the ~~Province~~ Corporation made pursuant to the provisions hereof, to the performance by the ~~Province~~ Corporation of its obligations hereunder ~~and with regard to the Securities~~ and to the following additional conditions precedent: (a) Prior to the Closing Date, no stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Province~~ Corporation or ~~the Representatives~~you, shall be ~~contemplated~~ threatened by the ~~SEC; and each Issuer Free Writing Prospectus,~~ Commission. (b) Prior to the ~~extent required~~ Closing Date, the rating assigned by ~~Rule 433 under~~ Xxxxx'x Investors Service, Inc. or Standard & Poor's Ratings Services to (i) any debt securities of the ~~Securities Act~~Corporation or (ii) any trust preferred securities of Duke Capital Financing Trust I, shall have been filed with the SEC under the Securities Act; and the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following Duke Capital Financing Trust II or Duke Capital Financing Trust III as of the date of this ~~Agreement~~Agreement shall not have been lowered. b(c) ~~Subsequent to~~ Since the ~~execution~~ respective most recent dates as of ~~this Agreement~~ which information is given in the Prospectus and ~~prior~~ up to the Closing Date, there shall not have ~~occurred~~ been any material adverse change in the ~~financial, economic or political~~ condition of the ~~Province from that set forth~~ Corporation, financial or otherwise, except as reflected in or contemplated by the ~~Registration Statement~~Prospectus, ~~the Time of Sale Information~~ and, since such dates and ~~the Final Prospectus; and the Underwriters shall have received, on~~ up to the Closing Date, ~~a certificate dated the Closing Date and signed~~ there shall not have been any material transaction entered into by the ~~Minister~~ Corporation other than transactions contemplated by the Prospectus and transactions in the ordinary course of ~~Finance~~ business, the effect of which in your judgment is so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the ~~Province,~~ Notes on the ~~Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth~~ terms and in the ~~first clause of this Section 9(b)~~manner contemplated by the Prospectus. c(d) ~~The Underwriters~~ You shall have received an opinion or opinions of ~~the Attorney General of the Province~~Xxxxx Xxxxxxxxxx LLP, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the ~~Province~~Corporation, dated the Closing Date, to the effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated the Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion, to the effect that: (i) The ~~Securities are exempted securities~~ Corporation has been duly incorporated and is validly existing as a corporation in good standing under the ~~Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect~~ laws of the ~~Securities~~ State of Delaware, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus and to enter into and perform its obligations under ~~the Trust Indenture Act is required for the issuance, sale and delivery of the Securities~~this Agreement. (ii) ~~The statements~~ Each of PanEnergy Corp and Duke Energy Natural Gas Corporation has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware and Texas Eastern Transmission, LP has been duly formed and is validly existing as a limited partnership in good standing under the laws of the State of Delaware, in each case with power and authority to own its properties and conduct its business as described in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to thereinProspectus. (iii) The ~~statements~~ Corporation is not an "investment company" or an entity "controlled" by an "investment company," as such terms are defined in the ~~Time~~ Investment Company Act of ~~Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”~~1940, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to thereinamended. (iv) ~~Based upon~~ The Corporation is not a holding company under the Public Utility Holding Company Act of 1935, as amended. (v) The Registration Statement has become effective under the 1933 Act, and, to the best of the knowledge of such counsel~~’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents~~, no ~~facts have come to such counsel’s attention which caused such counsel to believe that (A)~~ stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the 1933 Act. (~~other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment),~~ vi) The Registration Statement as of the date of ~~this Agreement~~effectiveness under the 1933 Act and the Prospectus as of the date it was filed with, or transmitted for filing to, the Commission complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations; and nothing has come to their attention that would lead them to believe that the Registration Statement as of the date of effectiveness under the 1933 Act (or if an amendment to such Registration Statement or an annual report on Form 10-K has been filed by the Corporation with the Commission subsequent to the effectiveness of the Registration Statement, then 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; (B)~~ misleading or that the ~~Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment),~~ Prospectus as of the ~~Time of Sale~~date it was filed with, ~~contained an untrue statement of a material fact~~ or ~~omitted to state a material fact necessary in order to make~~ transmitted for filing to, the ~~statements therein, in the light of the circumstances under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements~~ Commission and ~~other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or~~ at the Closing ~~Date,~~ Date contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Such opinion may state that such counsel do not assume any responsibility for the accuracy, ~~and,~~ completeness or fairness of the statements contained in ~~such counsel’s opinion,~~ or incorporated by reference into the Registration Statement and the ~~Final~~ Prospectus ~~(other than~~ except as otherwise expressly provided in such opinion and do not express any opinion or belief as to the financial statements ~~and~~ or other financial data contained ~~therein~~ in or ~~omitted therefrom~~incorporated by reference into the Registration Statement and the Prospectus, the statement of the eligibility and qualification of the Trustee or as to the information set forth in the Prospectus under the caption "Description of the Series Junior Subordinated Notes--Book-Entry Only Issuance--The Depository Trust Company." (vii) The statements made in the Prospectus under the captions "Description of the Junior Subordinated Notes" and "Description of the Series Junior Subordinated Notes," insofar as they purport to summarize provisions of documents specifically referred to therein, fairly present the information called for with respect thereto by Form S-3. (viii) This Agreement has been duly authorized, executed and delivered by the Corporation. (ix) The performance by the Corporation of this Agreement and the Indenture will not contravene any of the provisions of the Restated Certificate of Incorporation or By-Laws of the Corporation, nor will such performance contravene any statute or any order, rule or regulation of which such counsel ~~has not been requested to comment) appear on~~ is aware of any court or governmental agency or body having jurisdiction over the Corporation or any of its Principal Subsidiaries or any of their ~~face to be appropriately responsive~~ respective property, nor will such action conflict with or result in ~~all material respects to the requirements~~ a breach or violation of any of the ~~Securities~~ terms or provisions of, or constitute a default under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Corporation or any of its Principal Subsidiaries is a party or by which any of them or their respective property is bound or to which any of their property or assets is subject which affects in a material way the Corporation's ability to perform its obligations under this Agreement and the Indenture. (x) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issue and sale of the Notes or the consummation by the Corporation of the transactions contemplated by this Agreement or the Indenture, except such as have been obtained under the 1933 Act and the ~~applicable rules~~ Trust Indenture Act of 1939 and ~~regulations~~ such consents, approvals, authorizations, orders, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the ~~SEC thereunder~~Notes by the Underwriters. f(xi) The ~~Underwriters~~ Indenture has been duly authorized, executed and delivered by the Corporation and duly qualified under the Trust Indenture Act of 1939 and, assuming the due authorization, execution and delivery thereof by The Chase Manhattan Bank, as Trustee, constitutes a valid and legally binding instrument of the Corporation, enforceable against the Corporation in accordance with its terms, subject to the qualifications that the enforceability of the Corporation's obligations under the Indenture may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). (xii) The Notes have been duly authorized and executed by the Corporation and, when authenticated by The Chase Manhattan Bank, as Trustee, in the manner provided in the Indenture and delivered against payment therefor, will constitute valid and legally binding obligations of the Corporation, enforceable against the Corporation in accordance with their terms, subject to the qualifications that the enforceability of the Corporation's obligations under the Notes may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and are entitled to the benefits afforded by the Indenture in accordance with the terms of the Indenture and the Notes. In rendering the foregoing opinion or opinions, Xxxxx Xxxxxxxxxx LLP may state that such opinion or opinions are limited to the federal laws of the United States, the laws of the State of New York and the General Corporation Law of the State of Delaware, and that they are expressing no opinion as to the effect of the laws of any other jurisdiction. In addition, such counsel may state that they have relied as to certain factual matters on information obtained from public officials, officers of the Corporation and other sources believed by them to be responsible and that the signatures on all documents examined by them are genuine, assumptions which such counsel have not independently verified. (e) You shall have received an ~~opinion of Linklaters LLP, United Kingdom counsel for the Province~~opinion, dated the Closing Date, ~~subject to such qualifications and based upon such assumptions as are customary in~~ of Xxxxx X. Xxxx, Esq., General Counsel of the ~~United Kingdom in respect of such opinion~~Corporation, to the effect that: (i) Each of the Corporation and the Principal Subsidiaries is duly qualified to do business in each jurisdiction in which the ownership or leasing of its property or the conduct of its business requires such qualification, except where the failure to so qualify, considering all such cases in the aggregate, does not have a material adverse effect on the business, properties, financial position or results of operations of the Corporation and its subsidiaries taken as a whole. (ii) The descriptions in the Registration Statement and the Prospectus of legal or governmental proceedings are accurate and fairly present the information required to be shown, and such counsel does not know of any litigation or any legal or governmental proceeding instituted or threatened against the Corporation or any of its subsidiaries or any of their respective properties that would be required to be disclosed in the Prospectus and is not so disclosed. Such counsel shall also state that nothing has come to her attention that has caused her to believe that the Registration Statement as of the date of effectiveness under the 1933 Act and the Prospectus as of the date it was filed with, or transmitted for filing to, the Commission, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus as of the date it was filed with, or transmitted for filing to, the Commission and at the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Such counsel may also state that, except as otherwise expressly provided in such opinion, she does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in or incorporated by reference into the Registration Statement and the Prospectus and does not express any opinion or belief as to the financial statements or other financial data contained in or incorporated by reference into the Registration Statement and the Prospectus, the statement of the eligibility and qualification of the Trustee or as to the information set forth in the ~~Time of Sale Information, and Final~~ Prospectus under “the caption "Description of ~~Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”~~the Series Junior Subordinated Notes--Book-Entry Only Issuance--The Depository Trust Company." In rendering the foregoing opinion, such counsel may rely, to the extent ~~that they constitute summaries of legal matters referred to~~ recited therein, ~~fairly summarize in all material respects~~ upon opinions of local counsel. Such counsel may also state that she has relied as to certain factual matters on information obtained from public officials, officers of the ~~legal matters referred~~ Corporation and other sources believed by her to ~~therein~~be responsible. g(f) ~~The Underwriters~~ You shall have received an the opinion or opinions of ~~Dxxxx Xxxx & Wxxxxxxx LLP~~, ~~United States~~ counsel for the Underwriters, dated the Closing Date, as with respect to the incorporation of the Corporation, the validity of the Notes, the Registration Statement and the Prospectus, as amended or supplemented, and such other related matters ~~specified in subdivisions~~ as you may require, and the Corporation shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (g) On or after the date hereof, there shall not have occurred any of the following: (i~~), and (iv~~) ~~(but only as~~ a suspension or material limitation in trading in securities generally or of the ~~date~~ securities of ~~this Agreement as to clause~~ Duke Energy Corporation, the Corporation, Duke Capital Financing Trust I, Duke Capital Financing Trust II or Duke Capital Financing Trust III on the New York Stock Exchange; or (A)ii) a general moratorium on commercial banking activities in New York declared by either Federal or New York State authorities; or (iii) the outbreak or material escalation of ~~paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in~~ 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 specified in ~~respect~~ this subsection (g) in your judgment makes it impracticable or inadvisable to proceed with the public offering or the delivery of ~~such opinions~~the Notes on the terms and in the manner contemplated in the Prospectus. In ~~considering~~ such ~~opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely~~ event there shall be no liability on the ~~opinion~~ part of ~~counsel named~~ any party to any other party except as otherwise provided in ~~paragraph (d~~Section 7 hereof and except for the expenses to be borne by the Corporation as provided in Section 5(g) ~~of this Section 9 as to matters of British Columbian and Canadian law and procedure~~hereof. (h) ~~The Underwriters~~ You shall have received a certificate of the ~~Minister of Finance~~ Chairman of the ~~Province~~Board, the ~~Deputy Minister of Finance of~~ President, any Vice President, the ~~Province~~ Secretary or ~~another~~ an Assistant Secretary and any financial or accounting officer of the ~~Ministry of Finance of the Province satisfactory to the Representatives~~Corporation, dated the Closing Date, in which such ~~Minister, Deputy Minister or other officer, as the case may be~~officers, to the best of ~~his or her~~ their knowledge after reasonable investigation, shall state that the representations and warranties of the ~~Province~~ Corporation in this Agreement are true and ~~correct~~correct as of the Closing Date, that the ~~Province~~ Corporation has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date, that the conditions specified in Section 6(b) and Section 6(c) have been satisfied, and that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are ~~contemplated~~ threatened by the ~~SEC~~Commission. (i) ~~The purchase~~ On the date of this Agreement, you shall have received a letter dated the date hereof, in form and ~~sale~~ substance satisfactory to you, from the Corporation's independent public accountants, containing statements and information of the ~~Securities~~ type ordinarily included in ~~accordance~~ accountants' "comfort letters" to underwriters with respect to the ~~provisions hereof shall not be prohibited~~ financial statements and certain financial information contained in or incorporated by ~~any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada,~~ reference into the ~~United States of America, the Province or the State of New York~~Prospectus. (j) ~~The Province~~ At the Closing Date you shall have ~~furnished~~ received from the Corporation's independent public accountants a letter, dated the Closing Date, to the ~~Underwriters and~~ effect that such accountants reaffirm the statements made in the letter furnished pursuant to ~~counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. k~~paragraph (i) ~~Subsequent to the execution~~ of this ~~Agreement and~~ Section 6, except that the specified date referred to shall be a date not more than three business days prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The ~~Province~~ Corporation will furnish ~~the Underwriters~~ you with such conformed copies of such opinions, certificates, letters and documents as ~~the Representatives~~ you reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.

Appears in 1 contract

Samples: Underwriting Agreement (Duke Capital Financing Trust Vi)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the ~~several~~ Underwriters ~~to purchase and pay for the Securities will be~~ hereunder are subject to the accuracy of the representations and warranties on the part of the Province herein, to the accuracy of the statements of the representatives of the Province made pursuant to the provisions hereof, to the performance by the Province of its obligations hereunder and with regard to the Securities and to the following ~~additional conditions precedent~~conditions: (a) ~~Prior to the Closing Date,~~ The Prospectus shall have been filed as required by Section 3(a) and (i) no stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement shall have been issued and no proceedings for that purpose shall ~~have been instituted or~~be pending or threatened by the Commission, to (ii) no order suspending the ~~knowledge~~ effectiveness of the ~~Province~~ Registration Statement or the ~~Representatives,~~ qualification or registration of the Securities under the securities or blue sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by the ~~SEC; and each Issuer Free Writing Prospectus~~Commission or the authorities of any such jurisdiction, to (iii) any request for additional information on the ~~extent required by Rule 433 under~~ part of the ~~Securities Act,~~ staff of the Commission or any such authorities shall have been ~~filed~~ complied with to the ~~SEC under~~ satisfaction of the ~~Securities Act;~~ staff of the Commission or such authorities and (iv) after the ~~Final~~ date hereof no amendment or supplement to the Registration Statement or the Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters and the Underwriters did not object thereto in good faith. (b) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of Operating Partnership and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) neither the Company nor any of its subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the ~~SEC pursuant~~ Registration Statement and the Prospectus, if in the judgment of the Underwriters any such development makes it impracticable or inadvisable to ~~Rule 424 not later than 5:00 p.m. New York City time~~consummate the sale and delivery of the Securities by the Underwriters and at the public offering price. (c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its subsidiaries or any of their respective officers or directors or trustees, as the case may be, in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceeding it is reasonably probable that an unfavorable ruling, decision or finding would have a Material Adverse Effect. (d) Each of the representations and warranties of the REIT and the Operating Partnership contained herein shall be true and correct in all material respects at the Closing Date, as if made at the Closing Date, and all covenants and agreements contained herein to be performed on the ~~second business day following~~ part of the ~~date of this Agreement~~Company and all conditions contained herein to be fulfilled or complied with by the Company at or prior to the Closing Date, shall have been duly performed, fulfilled or complied with. b(e) Subsequent to the execution and delivery of this Underwriting Agreement and prior to the Closing Date, there shall not have occurred any ~~material adverse change~~ downgrading in the ~~financial, economic~~ rating accorded the Securities or ~~political condition~~ any other debt securities of the ~~Province from~~ Company by any Rating Agency nor shall any notice have been given to the Company of (i) any intended or potential downgrading by any Rating Agency in such securities, or (ii) any review or possible change by any Rating Agency that ~~set forth in the Registration Statement~~does not indicate a stable, ~~the Time of Sale Information and the Final Prospectus; and the~~ positive or improving rating accorded such securities. (f) The Underwriters shall have ~~received~~received one or more opinions, ~~on the Closing Date, a certificate~~ dated the Closing Date and ~~signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance~~ satisfactory in form and substance to the ~~Representatives~~ Underwriters' counsel, from Xxxxxxx, Procter LLP, counsel to the Company, (i) to the effect set forth in EXHIBIT B and (ii) concerning the tax matters set forth below: (i) Commencing with the Company's first ~~clause~~ taxable year ended December 31, 1994, the Company has been organized in conformity with the requirements for qualification as a REIT under the Code, and the Company's method of ~~this Section 9(b)~~operation, as described in the Prospectus and in company certificates delivered to such counsel, will enable it to continue to meet the requirements for qualification and taxation as a REIT under the Code; and (ii) The statements in the Prospectus Supplement and the Prospectus under the captions "Additional Federal Income Tax Considerations and Consequences of Your Investment" and "Federal Income Tax Considerations and Consequences of Your Investment," to the extent such information constitutes matters of law, summaries of legal matters, or legal conclusions, have been reviewed by such counsel and are accurate in all material respects as of the date of such opinion. c(g) The Underwriters shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Provinceopinion, dated the Closing Date, from O'Melveny & Xxxxx LLP, Underwriters' counsel, with respect to the ~~effect that under~~ Registration Statement, the ~~laws of British Columbia~~ Prospectus and ~~Canada and subject~~ this Agreement, which opinion shall be satisfactory in all respects to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the ~~Securities~~Underwriters. (iih) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance Concurrently with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this ~~Agreement and the Fiscal Agency~~ Agreement, ~~the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder~~ Deloitte & Touche LLP shall have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available furnished to the ~~Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not~~ Underwriters a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canadaletter, dated the ~~Closing Date~~date of its delivery, as addressed to the ~~matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications~~ Underwriters and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to ~~them~~ the Underwriters, confirming that they are independent accountants with respect to the Company as required by the Act and ~~they believe that~~ the ~~Representatives are justified~~ Rules and Regulations and with respect to the financial and other statistical and numerical information contained in ~~relying thereon. e) The Underwriters shall have received~~ the ~~opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated~~ Registration Statement or incorporated by reference therein. At the Closing Date, ~~subject~~ Deloitte & Touche LLP shall have furnished to ~~such qualifications and based upon such assumptions as are customary~~ the Underwriters a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the ~~United States~~ letter from Deloitte & Touche LLP, that nothing has come to their attention during the period from the date of the letter referred to in ~~respect~~ the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date which would require any change in their letter dated the date hereof if it were required to be dated and delivered at the Closing Date. (i) At the Closing Date, there shall be furnished to the Underwriters an accurate certificate, dated the date of ~~such opinion~~its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of each of (a) Gables GP on behalf of the Operating Partnership and (b) the REIT, in form and substance satisfactory to the Underwriters, to the effect that: (i) The ~~Securities are exempted securities~~ Prospectus has been filed as required by Section 3(a) and no stop order suspending the effectiveness of the Registration Statement under the ~~Trust Indenture~~ Act or the blue sky laws of ~~1939~~any jurisdiction has been issued and, ~~as amended (~~to the ~~“Trust Indenture Act”)~~best of their knowledge, information and belief, no ~~qualification~~ proceeding for such purpose is pending before or threatened or contemplated by the Commission or the authorities of ~~an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities~~any such jurisdiction. (ii) ~~The statements in~~ Any request for additional information on the ~~Time~~ part of ~~Sale Information and Final Prospectus under “Description~~ the staff of ~~Bonds” and “Description~~ the Commission or any such authorities has been complied with to the satisfaction of ~~Debt Securities and Warrants”, insofar as~~ the staff of the Commission or such ~~statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein~~authorities. (iii) ~~The statements in~~ Each signer of such certificate has carefully examined the ~~Time of Sale Information,~~ Registration Statement and ~~Final~~ the Prospectus (including any documents filed under ~~“Description of Debt Securities~~ the Exchange Act and ~~Warrants — United States Federal Income Taxation”, as supplemented~~ deemed to be incorporated by ~~“Tax Matters — United States Taxation”, to~~ reference into the ~~extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv~~Prospectus) ~~Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province~~ and ~~their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that~~ (A) ~~the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment),~~ believes that as of the date of ~~this Agreement~~such certificate, ~~contained an untrue statement of a~~ such documents are true and correct in all material ~~fact or omitted~~ respects and do not omit to state a material fact required to be stated therein or necessary in order to make the statements therein not ~~misleading;~~ untrue or misleading and (B) does not know of any event that has occurred as a result of which it is necessary to amend or supplement the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, contained an untrue statement of a material fact or omitted to state a material fact necessary Prospectus in order to make the statements ~~therein,~~ therein not untrue or misleading in any material respect and there has been no document required to be filed under the ~~light of~~ Exchange Act and the ~~circumstances under which they were made, not misleading; or (C)~~ Exchange Act Rules and Regulations that upon such filing would be deemed to be incorporated by reference into the ~~Final~~ Prospectus ~~(other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel~~ that has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunderso filed. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) ~~(but only as~~ Each of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of the ~~Province~~ Company contained in this Agreement ~~are~~ were, when originally made, and are, at the time such certificate is delivered, true and ~~correct, that~~ correct in all material respects. (v) Each of the ~~Province has complied with all agreements and satisfied all conditions on its part~~ covenants required to be performed ~~or satisfied at~~ by the Company herein on or prior to the ~~Closing Date~~delivery of such certificate has been duly, ~~that no stop order suspending~~ timely and fully performed and each condition herein required to be complied with by the ~~effectiveness~~ Company on or prior to the date of such certificate has been duly, timely and fully complied with. (vi) All of the ~~Registration Statement has been issued~~ statements made in the Company's audited financial statements and ~~no proceedings~~ notes thereto set forth in the Company's Annual Report on 10-K for ~~that purpose have been instituted or~~ the year ended December 31, 2001 (the "2001 Annual Report") are ~~contemplated by the SEC. i) The purchase~~ true, correct and ~~sale~~ complete as of the ~~Securities~~ date appearing on such statements and, since the date of the filing of the 2001 Annual Report, no event has occurred or condition exists which would cause the undersigned to doubt the accuracy or completeness of such financial statements, in each case in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New YorkU.S. generally accepted accounting principals. j(vii) The Province shall have furnished to the Underwriters and to counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. k) Subsequent to Since the execution and delivery of ~~this~~ the Underwriting Agreement and prior to the Closing Date, there ~~shall~~ has not ~~have~~ occurred any ~~downgrading,~~ downgrading in the rating accorded the Securities or any other debt securities of the Company by any Rating Agency nor ~~shall~~ has any notice ~~have~~ been given to the Company of (A) any intended or potential downgrading by any Rating Agency in such securities, or of (B) any ~~placing~~ review or possible change by any Rating Agency that does not indicate a stable, positive or improving rating accorded such securities. (j) The Securities shall be qualified for sale in such states as the Underwriters may reasonably request, each such qualification shall be in effect and not subject to any stop order or other proceeding on ~~credit watch with negative implications~~the Closing Date. (k) The Company shall have furnished to the Underwriters such certificates, ~~in the ratings accorded the debt securities~~ including, without limitation, one or more certificates of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The Province will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. If any of the ~~above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement~~ REIT and ~~all obligations~~ the Secretary of ~~the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives~~ Gables GP on behalf of the ~~Underwriters~~Operating Partnership, ~~without any liability on~~ in addition to those otherwise specifically mentioned herein, as the ~~part~~ Underwriters may have reasonably requested as to the accuracy and completeness at the Closing Date of any ~~Underwriter~~ statement in the Registration Statement or the Prospectus or any documents filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus, as to the ~~Province or~~ accuracy at the Closing Date of the ~~Province~~ representations and warranties of the Company herein as to ~~any Underwriter, except~~ the performance by the Company of its obligations hereunder or as ~~provided in Section 6, Section 10~~ to the fulfillment of the conditions concurrent and ~~Section 13 hereof. Notice~~ precedent to the obligations hereunder of ~~such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement~~the Underwriters.

Appears in 1 contract

Samples: Underwriting Agreement (Gables Realty Limited Partnership)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the several Underwriters to purchase and pay for the Offered Securities on the Closing Date will be subject to the accuracy of the representations and warranties on the part of the ~~Province herein~~Company herein as of the date hereof and as of the Closing Date, to the accuracy of the statements of ~~the representatives of the Province~~ Company officers made pursuant to the provisions hereof, to the performance by the ~~Province~~ Company of its obligations hereunder ~~and with regard to the Securities~~ and to the following additional conditions precedent: (a) ~~Prior to~~ The Prospectus shall have been filed with the ~~Closing Date, no~~ Commission in accordance with the Rules and Regulations and Section 5(a) of this Agreement. No stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement or of any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Province~~ Company or ~~the Representatives~~any Underwriter, shall be contemplated by the SEC; and each Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act, shall have been filed with the SEC under the Securities Act; and the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this AgreementCommission. (b) Subsequent to the execution and delivery of this ~~Agreement and prior to the Closing Date~~Agreement, there shall not have occurred (i) any ~~material adverse~~ change in the condition (financial or other), business or results of operations of the Company and its subsidiaries taken as a whole which, in the reasonable judgment of a majority in interest of the Underwriters including the Representative, is 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 Offered Securities; (ii) any downgrading in the rating of any debt securities of the Company 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 Company (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any change in U.S. or international financial, political or economic ~~or political condition~~ conditions as would, in the judgment of a majority in interest of the ~~Province from that set forth~~ Underwriters including the Representative, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Securities, whether in the ~~Registration Statement~~primary market or in respect of dealings in the secondary market; (iv) any material 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 Company on any exchange or in the over-the-counter market; (v) any banking moratorium declared by U.S. Federal or New York authorities; (vi) any major disruption of settlements of securities or clearance services in the United States or (vii) any attack on, outbreak or escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency if, in the judgment of a majority in interest of the Underwriters including the Representative, the ~~Time~~ effect of ~~Sale Information and the Final Prospectus; and the Underwriters shall have received~~any such attack, ~~on the Closing Date~~outbreak, ~~a certificate dated the Closing Date and signed by the Minister of Finance~~ escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the ~~Province,~~ public offering or the ~~Deputy Minister~~ sale of ~~Finance of~~ and payment for the ~~Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth in the first clause of this Section 9(b)~~Offered Securities. (c) The ~~Underwriters~~ Representative shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Provinceopinions, dated the Closing Date, of Xxxxxxx X. Xxxxxxxxx, Esq., Executive Vice President and General Counsel of the Company, and Xxxxxxxxx & Xxxxxxx, special counsel to the ~~effect that under~~ Company, substantially in the ~~laws~~ form of ~~British Columbia~~ Exhibits A and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the SecuritiesB hereto, respectively. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The ~~Underwriters~~ Representative shall have received ~~an opinion of Oxxxx, Hxxxxx~~ from Xxxxxx Xxxx & ~~Harcourt~~ Priest LLP, ~~Canadian~~ counsel to for the Underwriters, ~~given in respect of the laws of British Columbia and Canada~~such opinion or opinions, dated the Closing Date, as with respect to the incorporation of the Company, the validity of the Offered Securities, the Registration Statement, the Prospectus and other related matters ~~specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9~~as the Representative may require, ~~subject~~ and the Company shall have furnished to such ~~qualifications and based on~~ counsel such ~~assumptions~~ documents as ~~are customary in British Columbia in respect~~ they reasonably request for the purpose of ~~an opinion of this type. In rendering~~ enabling them to pass upon such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereon. (e) The ~~Underwriters~~ Representative shall have received ~~the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province~~a certificate, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion, to the effect that: (i) The Securities are exempted securities under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the ~~Securities under the Trust Indenture Act is required for the issuance, sale~~ President or any Vice President and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the principal financial ~~statements and other financial data contained therein~~ or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another accounting officer of the ~~Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date,~~ Company in which such ~~Minister, Deputy Minister or other officer, as the case may be~~officers, to the best of ~~his or her knowledge after reasonable investigation~~their knowledge, shall state that the representations and warranties of the ~~Province~~ Company in this Agreement are true and correct, that the ~~Province~~ Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to ~~the~~ such Closing Date, that 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 ~~SEC~~Commission and that, subsequent to the date of the most recent financial statements in the Prospectus, there has been no material adverse change in the condition (financial or other), business or results of operations of the Company and its subsidiaries taken as a whole except as set forth in or contemplated by the Prospectus. i(f) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province shall have furnished to the Underwriters and to counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. k) Subsequent to the execution of this Agreement and prior to On the Closing Date, ~~there~~ the Representative shall ~~not~~ have ~~occurred any downgrading, nor shall any notice have been given of any intended~~ received from PricewaterhouseCoopers LLP a letter or ~~potential downgrading or of any placing on credit watch with negative implications~~letters dated the Closing Date, in ~~the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters~~ form and ~~documents will be in compliance with the provisions hereof only if they are~~ substance reasonably satisfactory to the ~~Representatives~~Representative, together with signed or reproduced copies of such letter for each of the other Underwriters, containing statements and information with respect to the financial statements of, and certain financial information relating to, the Company, Pepco and Conectiv contained in the Registration Statement and the Prospectus of the same nature and scope as that included by such firm in letters delivered to underwriters in connection with other recent offerings of securities by the Company. The ~~Province~~ Company will furnish the ~~Underwriters~~ Representative with such conformed copies of such opinions, certificates, letters and documents as the ~~Representatives~~ Representative reasonably ~~request~~requests. ~~If any~~ CSFBC may in its sole discretion waive on behalf of the ~~above~~ Underwriters compliance with any conditions ~~shall not have been fulfilled as reasonably contemplated herein, this Agreement and all~~ to the obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreementhereunder.

Appears in 1 contract

Samples: Underwriting Agreement (Pepco Holdings Inc)

Appears in 1 contract

Samples: Underwriting Agreement (Globespan Inc/De)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the several Underwriters ~~to purchase and pay for the Securities will~~ hereunder shall be ~~subject~~ subject, in their discretion, to the ~~accuracy of the~~ condition that all representations and warranties ~~on the part of the Province herein, to the accuracy of the~~ and other statements of the ~~representatives~~ Company and Advanta herein are, at and as of the ~~Province made pursuant~~ Time of Delivery, true and correct (except to the ~~provisions hereof~~extent that any representation or warranty relates to a specific date, in which case such representation or warranty shall be deemed to relate only to such date), the ~~performance by~~ condition that the ~~Province~~ Company and Advanta shall have performed all of ~~its~~ their respective obligations hereunder theretofore to be performed, and ~~with regard to the Securities and to~~ the following additional conditions precedent: (a) ~~Prior~~ The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the ~~Closing Date,~~ applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; no stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement or any part thereof shall have been issued and no ~~proceedings~~ proceeding for that purpose shall have been ~~instituted or, to~~ initiated or threatened by the ~~knowledge~~ Commission; and all requests for additional information on the part of the ~~Province or the Representatives, shall be contemplated by the SEC; and each Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act,~~ Commission shall have been ~~filed~~ complied with to the SEC under the Securities Act; and the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this AgreementRepresentative's satisfaction. (b) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any material adverse change in the financial, economic or political condition of the Province from that set forth in the Registration Statement, the Time of Sale Information and the Final Prospectus; and the Underwriters shall have received, on the Closing Date, a certificate dated the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth in the first clause of this Section 9(b). c) The ~~Underwriters~~ Representative shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Provinceopinion, dated the Closing Date, of Van Cott, Xxxxxx, Cornwall & XxXxxxxx, as special Utah counsel for Advanta, satisfactory in form and substance to the Representative and its counsel to the effect ~~that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type~~that: (i) ~~The Province~~ Advanta (x) has ~~full~~ been duly incorporated and is validly existing as an industrial loan corporation under the laws of the State of Utah, with power and authority to own its properties and conduct its business as described in the Prospectus and (y) has the power, authority and legal right to acquire and own the Designated Accounts and the Receivables, to sell and assign the Receivables to the Company pursuant to the Receivables Purchase Agreement, to service the Designated Accounts and Receivables pursuant to the Transfer and Servicing Agreement and to enter into and perform its obligations under this Agreement and each Transaction Document to which it is a party. (ii) Advanta has, or at the time of execution thereof, had, the power and authority to execute and deliver each of the Transaction Documents to which it is a party, and Advanta had and at all times since the time of execution thereof has had and does now have the power to consummate the transactions contemplated herein and in the Transaction Documents to which it is a party. (iii) Advanta has duly authorized, executed and delivered each Transaction Document to which it is a party. (iv) This Agreement has been duly authorized, executed and delivered by Advanta. (v) No consent, approval, authorization or order of, or filing of any UCC financing statements with, any court or governmental agency or body of the State of Utah having jurisdiction over Advanta is required for the consummation of the transactions contemplated by this Agreement and the Transaction Documents, except for (x) filing of UCC financing statements with respect to ~~issue~~ the transactions contemplated in the Receivables Purchase Agreement and the Transfer and Servicing Agreement and (y) such consents, approvals, authorizations, orders or filings as may be required under the state securities or blue sky laws of any jurisdiction. (vi) The execution, delivery and performance by Advanta of this Agreement, the transfer of the Receivables from Advanta to the Company and, in turn, from the Company to the Issuer, the issuance and sale of the Notes and the consummation of any other of the transactions contemplated herein or in the Transaction Documents will not conflict with, result in a breach of or a violation of any of the terms of, or constitute a default under (x) the Articles of Incorporation and Bylaws of Advanta, (y) any rule, order, statute or regulation known to such counsel to be currently applicable to Advanta or (z) any agreement or other instrument, known to such counsel, to which Advanta is a party or by which it is bound. (vii) To such counsel's knowledge, there are no actions, proceedings or investigations pending before any court, administrative agency or other tribunal (v) asserting the invalidity of this Agreement, any of the Transaction Documents or the Notes, (w) seeking to prevent the issuance of the Notes or the consummation of any of the transactions contemplated by this Agreement or the Transaction Documents, (x) which might materially and adversely affect the performance by Advanta of its obligations under, or the validity or enforceability of, this Agreement or any of the Transaction Documents to which it is a party or (y) seeking adversely to affect the federal income tax attributes of the Notes as described in the Base Prospectus under the heading "Federal Income Tax Consequences." (c) The Representative shall have received an opinion, dated the Closing Date, of Xxxxxxxx and Wedge, as special Nevada counsel for the Company, satisfactory in form and substance to the Representative and its counsel to the effect that: (i) The Company (x) has been duly incorporated and is validly existing as a corporation under the laws of the State of Nevada, with power and authority to own its properties and conduct its business as described in the Prospectus and (y) has the power, authority and legal right to acquire and own the Receivables, to sell and assign the ~~Securities~~Receivables to the Issuer pursuant to the Transfer and Servicing Agreement and to enter into and perform its obligations under this Agreement and each Transaction Document to which it is a party. (ii) The Company has, or at the time of execution thereof, had, the power and authority to execute and deliver each of the Transaction Documents to which it is a party, and the Company had and at all times since the time of execution thereof has had and does now have the power to consummate the transactions contemplated herein and in the Transaction Documents to which it is a party. (iii) The Company has duly authorized, executed and delivered each Transaction Document to which it is a party. (iv) This Agreement ~~and the Fiscal Agency Agreement have~~ has been duly authorized, executed and delivered by the ~~Province~~ Company. (v) No consent, approval, authorization or order of, or filing of any UCC financing statements with, any court or governmental agency or body of the State of Nevada having jurisdiction over the Company is required for the consummation of the transactions contemplated by this Agreement and ~~each~~ the Transaction Documents, except for (x) filing of UCC financing statements with respect to the transactions contemplated in the Receivables Purchase Agreement and the Transfer and Servicing Agreement and (y) such consents, approvals, authorizations, orders or filings as may be required under the state securities or blue sky laws of any jurisdiction. (vi) The execution, delivery and performance by the Company of this Agreement, the transfer of the Receivables from the Company to the Issuer, the issuance and sale of the Notes and the consummation of any other of the transactions contemplated herein or in the Transaction Documents will not conflict with, result in a breach of or a violation of any of the terms of, or constitute a default under (x) the Articles of Incorporation and Bylaws of the Company or (y) any rule, order, statute or regulation known to such counsel to be currently applicable to the Company. (vii) To such counsel's knowledge, there are no actions, proceedings or investigations pending before any court, administrative agency or other tribunal (v) asserting the invalidity of this Agreement, any of the Transaction Documents or the Notes, (w) seeking to prevent the issuance of the Notes or the consummation of any of the transactions contemplated by this Agreement or the Transaction Documents, (x) which might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, this Agreement or any of the Transaction Documents to which it is a party or (y) seeking adversely to affect the federal income tax attributes of the Notes as described in the Base Prospectus under the heading "Federal Income Tax Consequences." (d) The Representative shall have received an opinion dated the Closing Date, of Wolf, Block, Xxxxxx and Xxxxx-Xxxxx LLP, special counsel to the Company and Advanta, satisfactory in form and substance to the Representative and its counsel, to the effect that: (i) Each of the Transaction Documents to which the Company or Advanta is a party constitutes the legal, valid and ~~legally~~ binding ~~agreement~~ obligation of each of them, as applicable, under the laws of the ~~Province~~State of New York enforceable against the Company and Advanta, ~~except~~ as ~~rights to indemnity~~ applicable, in accordance with its terms. (ii) This Agreement constitutes the legal, valid and ~~contribution hereunder may be limited~~ binding obligation of the Company and Advanta under ~~applicable law~~the laws of the State of New York, enforceable against the Company and Advanta in accordance with its terms. (iii) The ~~Securities~~Notes, when ~~duly executed,~~ executed and authenticated in accordance with the terms of the Indenture and delivered to and paid for by the Underwriters in accordance with ~~the provisions of~~ this ~~Agreement and the Fiscal Agency~~ Agreement, will be duly and validly issued and outstanding, will constitute ~~valid~~legal, ~~legally binding, direct~~ valid and ~~unconditional general~~ binding obligations of the ~~Province~~ Issuer, enforceable against the Issuer in accordance with their ~~respective~~ terms and will ~~rank equally and ratably with all other unsecured and unsubordinated indebtedness~~ be entitled to the benefits of the ~~Province outstanding on the date of issue of the Securities~~Indenture. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the ~~Time of Sale Information and Final~~ Base Prospectus under the ~~caption “Description~~ headings "Prospectus Summary -- Tax Status, " and "-- ERISA Considerations," "Risk Factors -- If a receiver or conservator were appointed for a seller or a transferor that is a bank, or if a seller or a transferor that is not a bank became a debtor in a bankruptcy case, delays or reductions in payment of ~~Bonds”, insofar as such statements constitute a summary~~ your notes could occur," "Material Legal Aspects of the ~~documents referred~~ Receivables," "ERISA Considerations" and "Federal Income Tax Consequences" and the statements in the Prospectus Supplement under the headings "Summary of Terms -- Tax Status" and " -- ERISA Considerations" and "ERISA Considerations," to ~~therein~~the extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by us and are ~~accurate~~ correct in all material respects~~, subject to the qualifications therein stated~~. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated the Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion, to the effect that: (i) The Securities are exempted securities under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of the Province in this Agreement are true and correct, that the Province has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the SEC. i) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province shall have furnished to the Underwriters and to counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. k) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The Province will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.

Appears in 1 contract

Samples: Underwriting Agreement (Advanta Business Recievables Corp)

Conditions of the Obligations of the Underwriters. The ~~respective obligations~~ obligation of ------------------------------------------------- the ~~several~~ Underwriters to purchase and pay for the ~~Securities~~ Notes will be subject to the accuracy of the representations and warranties by or on behalf of Spiegel, the ~~part of~~ Seller, SAC and the ~~Province~~ Bank herein, to the accuracy of the statements of ~~the representatives~~ officers of the ~~Province~~ Seller and the Bank made pursuant to the provisions hereof, to the performance by the ~~Province~~ Seller and the Bank of ~~its~~ their respective obligations hereunder ~~and with regard to the Securities~~ and to the following additional conditions precedent: (a) ~~Prior~~ On or prior to the date of this Agreement, the Representative shall have received a letter, dated the date of this Agreement, of [_____________________], confirming that they are independent public accountants within the meaning of the Act and the applicable published Rules and Regulations thereunder, substantially in the form heretofore agreed to and otherwise in form and in substance satisfactory to the Representative and its counsel. (b) The Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 5(a) of this Agreement; and, prior to the Closing Date, no stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Province~~ Seller or the ~~Representatives~~Representative, shall be contemplated by the SEC; and each Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act, shall have been filed with the SEC under the Securities Act; and the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this AgreementCommission. b(c) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any material adverse change in the financial, economic or political condition of the Province from that set forth in the Registration Statement, the Time of Sale Information and the Final Prospectus; and the Underwriters shall have received, on the Closing Date, a certificate dated the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth in the first clause of this Section 9(b). c) The Underwriters shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Province, dated the Closing Date, to the effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement ~~and~~ none of the ~~Fiscal Agency Agreement~~following shall have occurred: (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of Spiegel, the ~~issuance~~ Seller or the Bank which, in the judgment of the ~~Securities~~ Underwriters, make it impractical or inadvisable to proceed with the public offering or delivery of the Notes on the terms and in the ~~performance~~ manner contemplated in the Prospectus, (ii) trading in securities generally on the New York Stock Exchange, the American Stock Exchange or the over-the- counter market shall have been suspended or minimum prices shall have been established on either of such exchanges or such market by the ~~Province of its obligations hereunder and thereunder~~ Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction; (iii) a banking moratorium shall have been ~~obtained~~ declared by Federal or state authorities; (iv) the United States shall have become engaged in hostilities, there shall have been an escalation of hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States; (v) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets of the United States shall be such) as to make it, in the judgment of the Underwriters, impractical or inadvisable to proceed with the public offering or delivery of the Notes on the terms and ~~are~~ in ~~full force~~ the manner contemplated in the Prospectus or (vi) any material adverse change in the financial markets for asset-backed securities in the United States if, in the judgment of the Underwriters, the effect of which is to make it impractical or inadvisable to proceed with the public offering or delivery of the Notes on the terms and ~~effect~~in the manner contemplated in the Prospectus. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The ~~Underwriters~~ Representative shall have received an ~~opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada~~opinion, dated the Closing Date, ~~as to~~ of Xxxxx, Xxxxx and Xxxxx, special counsel for the ~~matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9~~Seller, ~~subject to such qualifications~~ SAC and ~~based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion~~the Bank, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance ~~satisfactory~~ to ~~them~~ the Representative and ~~they believe that the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States~~ its counsel ~~for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion,~~ to the effect that: (i) ~~The Securities are exempted securities~~ Spiegel is a corporation in good standing, duly organized and validly existing under the ~~Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect~~ laws of the ~~Securities~~ State of Delaware; the Seller is a corporation in good standing, duly organized and validly existing under the ~~Trust Indenture Act is required for the issuance, sale and delivery~~ laws of the ~~Securities. (ii) The statements~~ State of Delaware; SAC is a corporation in good standing, duly organized and validly existing under the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives laws of the ~~Province~~State of Delaware; the Bank is a national banking association in good standing, ~~counsel for~~ duly organized and validly existing under the ~~Province and their examination~~ laws of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States of America; and each of Spiegel, the Seller, SAC and the Bank (each collectively referred to in ~~respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph~~ this subsection (d) ~~of this Section 9~~ as ~~to matters of British Columbian and Canadian law and procedure. h~~a "Spiegel Entity") ~~The Underwriters shall have received a~~ is authorized by its certificate of ~~the Minister~~ incorporation -------------- or articles of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officerassociation, as the case may be, to transact the ~~best~~ business in which it is engaged and none of ~~his~~ Seller, SAC or ~~her knowledge after reasonable investigation~~the Bank is required to qualify or register as a foreign corporation, ~~shall~~ in any state ~~that~~ in order to conduct its business as presently conducted, except where the ~~representations~~ failure to so qualify or register would not have a material adverse effect upon the Noteholders; (ii) Each Spiegel Entity has full corporate power and ~~warranties~~ authority to enter into and perform its obligations under each Transaction Document and this Agreement to which it is a party; (iii) Each Spiegel Entity has the corporate power and authority and legal right to acquire, own and transfer, and, in the case of the ~~Province in~~ Bank, to service, the Receivables; (iv) Each of the Transaction Documents and this Agreement ~~are true~~ has been duly authorized, executed and ~~correct~~delivered by each Spiegel Entity that is a party thereto; (v) No consent, approval, authorization or order of any court or governmental agency or body is required for (a) the execution and delivery by any Spiegel Entity of any Transaction Document or this Agreement to which such Spiegel Entity is a party or the performance by such Spiegel Entity of its obligations thereunder, or (b) the issuance and sale of the Notes; (vi) Neither the execution and delivery of the Transaction Documents and this Agreement by any Spiegel Entity that is party thereto nor the ~~Province~~ performance by such Spiegel Entity of the transactions therein contemplated nor the fulfillment of the terms thereof does or will result in any violation of any statute or regulation or any order or decree of any court or governmental authority binding upon such Spiegel Entity or its property, or conflict with, or result in a breach or violation of any term or provision, or result in a default under any of the terms and provisions, of such Spiegel Entity's certificate of incorporation or articles of association, as the case may be, or by-laws or any material indenture, loan agreement or other material agreement known to such counsel to which such Spiegel Entity is a party or by which such Spiegel Entity is bound; (vii) There is no legal or governmental proceeding pending to which any Spiegel Entity is a party or to which any Spiegel Entity is subject which, individually or in the aggregate (a) would have a material adverse effect on the ability of such Spiegel Entity to perform its obligations under the Transaction Documents or this Agreement, (b) assert the invalidity of any Transaction Document, this Agreement, the Seller Interest or the Collateral Certificate, (c) seek to prevent the issuance, sale or delivery of the Notes or any of the transactions contemplated by the Transaction Documents or this Agreement or (d) seek to adversely affect the federal income tax consequences of the Notes; and (viii) The Registration Statement has ~~complied with all agreements~~ become effective under the Act and ~~satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date, that~~ no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or ~~are contemplated~~ threatened under the Act. (ix) Each of the Transaction Documents to which the Seller, SAC or the Bank is a party constitutes the legal, valid and binding agreement of the Seller, SAC and the Bank, as the case may be, under the laws of Illinois, enforceable against each such Person in accordance with its terms, subject to (w) limitations imposed by bankruptcy, insolvency, reorganization, liquidation, arrangement, fraudulent conveyance, moratorium, receivership, conservatorship, readjustment of debts, creditors' rights or other laws relating to or affecting the rights of creditors generally or the rights of creditors of national banking associations; (x) rights to indemnification and contribution which may be limited by applicable law and equitable principles or otherwise unenforceable as against public policy; (y) the unenforceability under certain circumstances of provisions imposing penalties, forfeiture, late payment charges, or an increase in interest rate upon delinquency in payment or the occurrence of any event of default; and (z) general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, and the possible unavailability of specific performance or injunctive relief, regardless of whether such enforceability is considered in a proceeding in equity or at law. (x) This Agreement constitutes the legal, valid and binding obligation of Spiegel and the Bank under the laws of the State of Illinois, enforceable against Spiegel and the Bank in accordance with its terms, subject to (w) limitations imposed by bankruptcy, insolvency, reorganization, liquidation, arrangement, fraudulent conveyance, moratorium, receivership, conservatorship, readjustment of debts, creditors' rights or other laws relating to or affecting the rights of creditors generally or the rights of creditors of national banking associations; (x) rights to indemnification and contribution which may be limited by applicable law and equitable principles or otherwise unenforceable as against public policy; (y) the unenforceability under certain circumstances of provisions imposing penalties, forfeiture, late payment charges, or an increase in interest rate upon delinquency in payment or the occurrence of any event of default; and (z) general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, and the possible unavailability of specific performance or injunctive relief, regardless of whether such enforceability is considered in a proceeding in equity or at law. (xi) When the Notes have been duly executed and delivered by the ~~SEC. i) The purchase and sale of~~ Issuer, authenticated by the ~~Securities~~ Indenture Trustee in accordance with the ~~provisions hereof shall not be prohibited~~ terms of the Indenture and delivered to and paid for by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province shall have furnished to the Underwriters ~~and to counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. k) Subsequent to the execution of~~ in accordance with this ~~Agreement and prior to the Closing Date~~Agreement, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents they will be ~~in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The Province~~ validly issued and outstanding, will ~~furnish the Underwriters with such conformed copies of such opinions~~constitute legal, ~~certificates, letters~~ valid and ~~documents as the Representatives reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all~~ binding obligations of the ~~Underwriters hereunder may be terminated with respect to Securities at~~Issuer, ~~or at any time prior to,~~ enforceable against the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable Issuer in accordance with ~~Section 14~~ their terms and will be entitled to the benefits of ~~this Agreement~~the Indenture, subject to (w) limitations imposed by bankruptcy, insolvency, reorganization, liquidation, arrangement, fraudulent conveyance, moratorium, receivership, conservatorship, readjustment of debts, creditors' rights or other laws relating to or affecting the rights of creditors generally or the rights of creditors of national banking associations; (x) rights to indemnification and contribution which may be limited by applicable law and equitable principles or otherwise unenforceable as against public policy; (y) the unenforceability under certain circumstances of provisions imposing penalties, forfeiture, late payment charges, or an increase in interest rate upon delinquency in payment or the occurrence of any event of default; and (z) general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, and the possible unavailability of specific performance or injunctive relief, regardless of whether such enforceability is considered in a proceeding in equity or at law. (xii) The statements in the Base Prospectus under the headings "Risk Factors--If a conservator or receiver were appointed for First Consumers National Bank, or if we or Spiegel Acceptance became a debtor in a bankruptcy case, delays or reductions in payment of your notes could occur," "Material Legal Aspects of the Receivables," "ERISA Considerations" and "Federal Income Tax Consequences" and the statements in the Prospectus Supplement under the headings "Structural Summary--Tax Status" and "--ERISA Considerations" to the extent that they constitute matters of law or legal conclusions with respect thereto, have been reviewed by us and are correct in all material respects.

Appears in 1 contract

Samples: Underwriting Agreement (Spiegel Master Trust)

Appears in 1 contract

Samples: Underwriting Agreement (Advanta Business Recievables Corp)

Conditions of the Obligations of the Underwriters. The ~~respective~~ several obligations of the ~~several~~ Underwriters to purchase and pay for the ~~Securities~~ Notes will be subject to the accuracy of the representations and warranties ~~on the part of the Province~~ made herein~~, to the accuracy of the statements of the representatives of the Province made pursuant to the provisions hereof~~, to the performance by the ~~Province~~ Depositor and Verizon Wireless of ~~its~~ their obligations ~~hereunder and with regard to the Securities~~ hereunder, and to the following additional conditions precedent: (a) ~~Prior~~ On the Closing Date, each of the Transaction Documents shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully conformed copy of the Notes and Certificates, and the Notes shall have been duly executed and delivered by the Trust and duly authenticated by the Indenture Trustee. The Transaction Documents shall be substantially in the forms heretofore provided to the Representatives. (b) On or before the Closing Date, the Underwriters shall have received the Accountant’s Due Diligence Report and letters, dated as of the date of the Preliminary Prospectus and Prospectus, respectively, of the Accounting Firm, substantially in the form of the drafts to which the Representatives have agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Underwriters and counsel to the Underwriters. (c) The Prospectus and any supplements thereto shall have been filed (if required) with the Commission in accordance with the Rules and Regulations; and, before the Closing Date, no stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Province~~ Depositor or the ~~Representatives~~Underwriters, shall be contemplated by the ~~SEC; and each Issuer Free Writing Prospectus, to~~ Commission or by any authority administering any state securities or blue sky law. (d) Since the ~~extent required by Rule 433 under~~ respective dates as of which information is given in the ~~Securities Act, shall have been filed with the SEC under the Securities Act;~~ Preliminary Prospectus and the ~~Final~~ Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this Agreement. b) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have ~~occurred~~ been (i) any material adverse change in the ~~financial~~business, ~~economic~~ business prospects, properties, financial condition, or ~~political condition~~ results of operations of Verizon Wireless and its subsidiaries, including the ~~Province from that~~ Depositor and the Trust, taken as a whole, or (ii) any development involving a prospective material adverse change in or affecting the Receivables or the servicing or origination business of Verizon Wireless, in each case other than as set forth or contemplated in the ~~Registration Statement, the Time of Sale Information~~ Preliminary Prospectus and the ~~Final~~ Prospectus; and the Underwriters shall have received, on the Closing Date, a certificate dated the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth in the first clause of this Section 9(b). c(e) The Underwriters shall have received an opinion or opinions of in-house counsel to the ~~Attorney General~~ Depositor and Verizon Wireless, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (f) The Underwriters shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the ~~Province~~Depositor, Verizon Wireless and the ~~Deputy Attorney General of the Province~~Trust, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory addressed to the Representatives, ~~as Canadian~~ dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the ~~Province~~Underwriters, addressing (i) corporate, enforceability and securities law matters, (ii) the enforceability of the Notes, (iii) certain true sale and nonconsolidation bankruptcy matters, (iv) bankruptcy proceedings of Verizon Wireless with respect to preference matters, (v) bankruptcy proceedings of Verizon Wireless and the impact of Annual Upgrade Offers, (vi) certain security interest matters and (vii) certain United States federal income tax matters. (g) The Underwriters shall have received one or more negative assurance letters of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Trust, the Depositor and Verizon Wireless, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (h) The Underwriters shall have received an opinion or opinions, addressed to the Underwriters, of Xxxxxxxx, Xxxxxx & Xxxxxx, P.A., counsel to the Indenture Trustee, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (i) The Underwriters shall have received an opinion or opinions, addressed to the Underwriters, of Xxxxxx Xxxxx LLP, counsel to the Owner Trustee, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (j) The Underwriters shall have received an opinion or opinions, addressed to the Underwriters, of Xxxxxx Xxxxx XXX, special Delaware counsel for the Trust, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (k) The Underwriters shall have received an opinion or opinions, addressed to the Underwriters, of Xxxxxx Xxxxx XXX, special Delaware counsel to the Depositor, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (l) The Underwriters shall have received an opinion or opinions, addressed to the Underwriters, of Xxxxxx Xxxxx XXX, special Delaware counsel to the Master Trust, dated as of the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (m) The Underwriters shall have received an opinion or opinions, addressed to the Underwriters, of Bass, Xxxxx & Xxxx PLC, counsel to the Asset Representations Reviewer, dated the Closing Date, and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (n) The Underwriters shall have received one or more negative assurance letters of Xxxxx Xxxxx LLP, counsel for the Underwriters, addressed to the Underwriters. (o) The Underwriters shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Underwriters, dated the Closing Date, to the effect that ~~under~~ the ~~laws~~ Representatives and the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securitiesits date. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. dp) The Underwriters shall have received ~~an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada,~~ certificates dated the Closing ~~Date, as to the matters specified in subdivisions (i) through (vii)~~ Date of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) any one of the ~~Minister of Finance~~ President, Chief Financial Officer, any Vice President, the Controller, the Treasurer or Assistant Treasurer of the ~~Province, the Deputy Minister of Finance of the Province or another~~ Depositor and Verizon Wireless in which such officer ~~of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion~~ shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion, to the effect that: (i) The Securities are exempted securities under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that : (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of made by such entity contained in the ~~Province in~~ Transaction Documents and this Agreement are true and ~~correct~~correct in all material respects (except to the extent any such representation or warranty is already qualified by materiality, in which case such representation or warranty is true and correct in all respects), that ~~the Province~~ such party has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at under such agreements on or ~~prior~~ before the Closing Date in all material respects (except to the extent any such agreement or condition is already qualified by materiality, in which case such agreement or condition has been complied with or satisfied, as applicable, in all respects), (B) since the date of this Agreement there has not occurred (i) any material adverse change in the business, business prospects, properties, financial condition or results of operations of the Trust, the Depositor or Verizon Wireless or (ii) to the best of such officer’s knowledge, any development involving a prospective material adverse change in or affecting the Receivables or the servicing or origination business of Verizon Wireless, in each case except as disclosed to the Representatives in writing and (C) there are no actions, proceedings or investigations to which the Depositor or Verizon Wireless is a party or that are, to such party’s knowledge after due inquiry, threatened before any court, administrative agency or other tribunal having jurisdiction over Verizon Wireless or the Depositor, (i) asserting the invalidity of this Agreement, any Transaction Document or the Notes, (ii) seeking to prevent the issuance of the Notes or the consummation of any of the transactions contemplated by this Agreement or the Transaction Documents, (iii) which would reasonably be expected to have a Material Adverse Effect or (iv) seeking adversely to affect the federal income tax attributes of the Notes as described in the Prospectus or the Preliminary Prospectus under the heading “U.S. Tax Consequences.” (q) The Representatives shall have received evidence satisfactory to the Representatives and counsel to the Underwriters that, on or before the Closing Date, ~~that no stop order suspending~~ UCC-1 financing statements, have been or are being filed in all applicable governmental offices reflecting (A) the ~~effectiveness~~ transfer of the ~~Registration Statement has been issued~~ interest of the Originators in the related Receivables, and ~~no proceedings for that purpose~~ the proceeds thereof to the Depositor pursuant to the Originator Receivables Transfer Agreement, (B) the transfer of the interest of the Master Trust in the related Receivables and the proceeds thereof to the Depositor pursuant to the Master Trust Receivables Transfer Agreement, (C) the transfer of the interest of the Depositor in the Originator Receivables Transfer Agreement, the Master Trust Receivables Transfer Agreement, the Receivables and the proceeds thereof to the Trust pursuant to the Transfer and Servicing Agreement, and (D) the grant by the Trust to the Indenture Trustee under the Indenture of a security interest in the interest of the Trust in the Transfer and Servicing Agreement, the Receivables and the proceeds thereof. (r) The Class A-1a Notes shall have been ~~instituted or are contemplated~~ rated at least AAA (sf) by ~~the SEC~~S&P Global Ratings (“S&P”) and at least AAA sf by Fitch Ratings, Inc. (“Fitch”). The Class A-1b Notes shall have been rated at least AAA (sf) by S&P and at least AAA sf by Fitch. The Class B Notes shall have been rated at least AA+ (sf) by S&P and at least AA sf by Fitch. The Class C Notes shall have been rated at least A+ (sf) by S&P and at least A sf by Fitch. (s) The Underwriters shall have received, from each of Verizon Wireless, Verizon, the Originators and the Depositor, a certificate executed by a secretary or assistant secretary thereof (or the equivalent) to which shall be attached certified copies of the: (i) formation and governing documents, (ii) applicable resolutions and (iii) designation of incumbency of each such entity. The ~~purchase and sale~~ Underwriters shall have received, from the Trust, a certified copy of the ~~Securities in accordance with~~ certificate of formation and an executed copy of the ~~provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority~~ trust agreement evidencing formation of ~~Canada,~~ the ~~United States of America, the Province or the State of New York~~trust. j(t) The ~~Province~~ Representatives shall have ~~furnished~~ received evidence of any required Lien releases to be filed or recorded (immediately following the Closing Date) with respect to the ~~Underwriters~~ Permitted Liens affecting the Receivables from all applicable creditors of Verizon Wireless, in form and substance satisfactory to ~~counsel for the Underwriters such further certificates and documents as~~ the Representatives and ~~such~~ counsel ~~reasonably request~~to the Underwriters. k(u) ~~Subsequent~~ All representations and warranties made by or on behalf of Verizon Wireless and the Depositor in the Transaction Documents to which each is a party are true and correct in all material respects as of the Closing Date. (v) The Underwriters shall have received an opinion of in-house counsel to the ~~execution~~ Cap Counterparty, addressed to the Representatives, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters, addressing the enforceability of ~~this Agreement and prior to~~ the Cap Agreement. (w) The Representatives shall have received a certificate, dated the Closing Date, ~~there shall not have occurred~~ signed by an authorized officer or any ~~downgrading, nor shall any notice have been given~~ Vice President of ~~any intended or potential downgrading or of any placing on credit watch with negative implications~~the Indenture Trustee, in which such officer shall state that the ~~ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency~~ information contained in the ~~United States. All such opinions, certificates, letters~~ Form T-1 for the Indenture Trustee is true and ~~documents will be in compliance~~ accurate as of its filing with the ~~provisions hereof only if they are reasonably satisfactory~~ Commission. The Depositor will provide or cause to be provided to the ~~Representatives. The Province will furnish the~~ Underwriters ~~with such~~ conformed copies of such opinions, certificates, letters and documents as the ~~Representatives~~ Underwriters or counsel to the Underwriters reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.

Appears in 1 contract

Samples: Underwriting Agreement (Verizon Owner Trust 2019-C)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the several Underwriters to purchase and pay for the ~~Securities~~ Notes will be subject to the accuracy of the representations and warranties on the part of the ~~Province~~ Corporation herein, to the accuracy of the statements of ~~the representatives~~ officers of the ~~Province~~ Corporation made pursuant to the provisions hereof, to the performance by the ~~Province~~ Corporation of its obligations hereunder ~~and with regard to the Securities~~ and to the following additional conditions precedent: (a) Prior to the Closing Date, no stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Province~~ Corporation or ~~the Representatives~~you, shall be ~~contemplated~~ threatened by the ~~SEC; and each Issuer Free Writing Prospectus,~~ Commission. (b) Prior to the ~~extent required~~ Closing Date, the rating assigned by ~~Rule 433 under~~ Xxxxx'x Investors Service, Inc. or Standard & Poor's Ratings Services to (i) any debt securities of the ~~Securities Act~~Corporation or (ii) any trust preferred securities of Duke Capital Financing Trust I, shall have been filed with the SEC under the Securities Act; and the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following Duke Capital Financing Trust II or Duke Capital Financing Trust III as of the date of this ~~Agreement~~Agreement shall not have been lowered. b(c) ~~Subsequent to~~ Since the ~~execution~~ respective most recent dates as of ~~this Agreement~~ which information is given in the Prospectus and ~~prior~~ up to the Closing Date, there shall not have ~~occurred~~ been any material adverse change in the ~~financial, economic or political~~ condition of the ~~Province from that set forth~~ Corporation, financial or otherwise, except as reflected in or contemplated by the ~~Registration Statement~~Prospectus, ~~the Time of Sale Information~~ and, since such dates and ~~the Final Prospectus; and the Underwriters shall have received, on~~ up to the Closing Date, ~~a certificate dated the Closing Date and signed~~ there shall not have been any material transaction entered into by the ~~Minister~~ Corporation other than transactions contemplated by the Prospectus and transactions in the ordinary course of ~~Finance~~ business, the effect of which in your judgment is so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the ~~Province,~~ Notes on the ~~Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth~~ terms and in the ~~first clause of this Section 9(b)~~manner contemplated by the Prospectus. c(d) ~~The Underwriters~~ You shall have received an opinion or opinions of ~~the Attorney General of the Province~~Xxxxx Xxxxxxxxxx LLP, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the ~~Province~~Corporation, dated the Closing Date, to the effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated the Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion, to the effect that: (i) The ~~Securities are exempted securities~~ Corporation has been duly incorporated and is validly existing as a corporation in good standing under the ~~Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect~~ laws of the ~~Securities~~ State of Delaware, with power and authority (corporate and other) to own its properties and conduct its business as described in the Prospectus and to enter into and perform its obligations under ~~the Trust Indenture Act is required for the issuance, sale and delivery of the Securities~~this Agreement. (ii) ~~The statements~~ Each of PanEnergy Corp and Duke Energy Natural Gas Corporation has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware and Texas Eastern Transmission, LP has been duly formed and is validly existing as a limited partnership in good standing under the laws of the State of Delaware, in each case with power and authority to own its properties and conduct its business as described in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to thereinProspectus. (iii) The ~~statements~~ Corporation is not an "investment company" or an entity "controlled" by an "investment company," as such terms are defined in the ~~Time~~ Investment Company Act of ~~Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”~~1940, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to thereinamended. (iv) ~~Based upon~~ The Corporation is not a holding company under the Public Utility Holding Company Act of 1935, as amended. (v) The Registration Statement has become effective under the 1933 Act, and, to the best of the knowledge of such counsel~~’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents~~, no ~~facts have come to such counsel’s attention which caused such counsel to believe that (A)~~ stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the 1933 Act. (~~other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment),~~ vi) The Registration Statement as of the date of ~~this Agreement~~effectiveness under the 1933 Act and the Prospectus as of the date it was filed with, or transmitted for filing to, the Commission complied as to form in all material respects with the requirements of the 1933 Act and the 1933 Act Regulations; and nothing has come to their attention that would lead them to believe that the Registration Statement as of the date of effectiveness under the 1933 Act (or if an amendment to such Registration Statement or an annual report on Form 10-K has been filed by the Corporation with the Commission subsequent to the effectiveness of the Registration Statement, then 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; (B)~~ misleading or that the ~~Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment),~~ Prospectus as of the ~~Time of Sale~~date it was filed with, ~~contained an untrue statement of a material fact~~ or ~~omitted to state a material fact necessary in order to make~~ transmitted for filing to, the ~~statements therein, in the light of the circumstances under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements~~ Commission and ~~other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or~~ at the Closing ~~Date,~~ Date contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. Such opinion may state that such counsel do not assume any responsibility for the accuracy, ~~and,~~ completeness or fairness of the statements contained in ~~such counsel’s opinion,~~ or incorporated by reference into the Registration Statement and the ~~Final~~ Prospectus ~~(other than~~ except as otherwise expressly provided in such opinion and do not express any opinion or belief as to the financial statements ~~and~~ or other financial data contained ~~therein~~ in or ~~omitted therefrom~~incorporated by reference into the Registration Statement and the Prospectus, the statement of the eligibility and qualification of the Trustee or as to the information set forth in the Prospectus under the caption "Description of the Series Senior Notes--Book- Entry Only Issuance--The Depository Trust Company." (vii) The statements made in the Prospectus under the captions "Description of the Senior Notes" and "Description of the Series Senior Notes," insofar as they purport to summarize provisions of documents specifically referred to therein, fairly present the information called for with respect thereto by Form S-3. (viii) This Agreement has been duly authorized, executed and delivered by the Corporation. (ix) The performance by the Corporation of this Agreement and the Indenture will not contravene any of the provisions of the Restated Certificate of Incorporation or By-Laws of the Corporation, nor will such performance contravene any statute or any order, rule or regulation of which such counsel ~~has not been requested to comment) appear on~~ is aware of any court or governmental agency or body having jurisdiction over the Corporation or any of its Principal Subsidiaries or any of their ~~face to be appropriately responsive~~ respective property, nor will such action conflict with or result in ~~all material respects to the requirements~~ a breach or violation of any of the ~~Securities~~ terms or provisions of, or constitute a default under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Corporation or any of its Principal Subsidiaries is a party or by which any of them or their respective property is bound or to which any of their property or assets is subject which affects in a material way the Corporation's ability to perform its obligations under this Agreement and the Indenture. (x) No consent, approval, authorization, order, registration or qualification of or with any court or governmental agency or body is required for the issue and sale of the Notes or the consummation by the Corporation of the transactions contemplated by this Agreement or the Indenture, except such as have been obtained under the 1933 Act and the ~~applicable rules~~ Trust Indenture Act of 1939 and ~~regulations~~ such consents, approvals, authorizations, orders, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the ~~SEC thereunder~~Notes by the Underwriters. f(xi) The ~~Underwriters~~ Indenture has been duly authorized, executed and delivered by the Corporation and duly qualified under the Trust Indenture Act of 1939 and, assuming the due authorization, execution and delivery thereof by The Chase Manhattan Bank, as Trustee, constitutes a valid and legally binding instrument of the Corporation, enforceable against the Corporation in accordance with its terms, subject to the qualifications that the enforceability of the Corporation's obligations under the Indenture may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). (xii) The Notes have been duly authorized and executed by the Corporation and, when authenticated by The Chase Manhattan Bank, as Trustee, in the manner provided in the Indenture and delivered against payment therefor, will constitute valid and legally binding obligations of the Corporation, enforceable against the Corporation in accordance with their terms, subject to the qualifications that the enforceability of the Corporation's obligations under the Notes may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and are entitled to the benefits afforded by the Indenture in accordance with the terms of the Indenture and the Notes. In rendering the foregoing opinion or opinions, Xxxxx Xxxxxxxxxx LLP may state that such opinion or opinions are limited to the federal laws of the United States, the laws of the State of New York and the General Corporation Law of the State of Delaware, and that they are expressing no opinion as to the effect of the laws of any other jurisdiction. In addition, such counsel may state that they have relied as to certain factual matters on information obtained from public officials, officers of the Corporation and other sources believed by them to be responsible and that the signatures on all documents examined by them are genuine, assumptions which such counsel have not independently verified. (e) You shall have received an ~~opinion of Linklaters LLP, United Kingdom counsel for the Province~~opinion, dated the Closing Date, ~~subject to such qualifications and based upon such assumptions as are customary in~~ of Xxxxx X. Xxxx, Esq., General Counsel of the ~~United Kingdom in respect of such opinion~~Corporation, to the effect that: (i) Each of the Corporation and the Principal Subsidiaries is duly qualified to do business in each jurisdiction in which the ownership or leasing of its property or the conduct of its business requires such qualification, except where the failure to so qualify, considering all such cases in the aggregate, does not have a material adverse effect on the business, properties, financial position or results of operations of the Corporation and its subsidiaries taken as a whole. (ii) The descriptions in the Registration Statement and the Prospectus of legal or governmental proceedings are accurate and fairly present the information required to be shown, and such counsel does not know of any litigation or any legal or governmental proceeding instituted or threatened against the Corporation or any of its subsidiaries or any of their respective properties that would be required to be disclosed in the Prospectus and is not so disclosed. Such counsel shall also state that nothing has come to her attention that has caused her to believe that the Registration Statement as of the date of effectiveness under the 1933 Act and the Prospectus as of the date it was filed with, or transmitted for filing to, the Commission, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus as of the date it was filed with, or transmitted for filing to, the Commission and at the Closing Date, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading. Such counsel may also state that, except as otherwise expressly provided in such opinion, she does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in or incorporated by reference into the Registration Statement and the Prospectus and does not express any opinion or belief as to the financial statements or other financial data contained in or incorporated by reference into the Registration Statement and the Prospectus, the statement of the eligibility and qualification of the Trustee or as to the information set forth in the ~~Time of Sale Information, and Final~~ Prospectus under “the caption "Description of ~~Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”~~the Series Senior Notes--Book-Entry Only Issuance--The Depository Trust Company." In rendering the foregoing opinion, such counsel may rely, to the extent ~~that they constitute summaries of legal matters referred to~~ recited therein, ~~fairly summarize in all material respects~~ upon opinions of local counsel. Such counsel may also state that she has relied as to certain factual matters on information obtained from public officials, officers of the ~~legal matters referred~~ Corporation and other sources believed by her to ~~therein~~be responsible. g(f) ~~The Underwriters~~ You shall have received an the opinion or opinions of ~~Dxxxx Xxxx & Wxxxxxxx LLP~~, ~~United States~~ counsel for the Underwriters, dated the Closing Date, as with respect to the incorporation of the Corporation, the validity of the Notes, the Registration Statement and the Prospectus, as amended or supplemented, and such other related matters ~~specified in subdivisions~~ as you may require, and the Corporation shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (g) On or after the date hereof, there shall not have occurred any of the following: (i~~), and (iv~~) ~~(but only as~~ a suspension or material limitation in trading in securities generally or of the ~~date~~ securities of ~~this Agreement as to clause~~ Duke Energy Corporation, the Corporation, Duke Capital Financing Trust I, Duke Capital Financing Trust II or Duke Capital Financing Trust III on the New York Stock Exchange; or (A)ii) a general moratorium on commercial banking activities in New York declared by either Federal or New York State authorities; or (iii) the outbreak or material escalation of ~~paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in~~ 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 specified in ~~respect~~ this subsection (g) in your judgment makes it impracticable or inadvisable to proceed with the public offering or the delivery of ~~such opinions~~the Notes on the terms and in the manner contemplated in the Prospectus. In ~~considering~~ such ~~opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely~~ event there shall be no liability on the ~~opinion~~ part of ~~counsel named~~ any party to any other party except as otherwise provided in ~~paragraph (d~~Section 7 hereof and except for the expenses to be borne by the Corporation as provided in Section 5(g) ~~of this Section 9 as to matters of British Columbian and Canadian law and procedure~~hereof. (h) ~~The Underwriters~~ You shall have received a certificate of the ~~Minister of Finance~~ Chairman of the ~~Province~~Board, the ~~Deputy Minister of Finance of~~ President, any Vice President, the ~~Province~~ Secretary or ~~another~~ an Assistant Secretary and any financial or accounting officer of the ~~Ministry of Finance of the Province satisfactory to the Representatives~~Corporation, dated the Closing Date, in which such ~~Minister, Deputy Minister or other officer, as the case may be~~officers, to the best of ~~his or her~~ their knowledge after reasonable investigation, shall state that the representations and warranties of the ~~Province~~ Corporation in this Agreement are true and ~~correct~~correct as of the Closing Date, that the ~~Province~~ Corporation has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date, that the conditions specified in Section 6(b) and Section 6(c) have been satisfied, and that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are ~~contemplated~~ threatened by the ~~SEC~~Commission. (i) ~~The purchase~~ On the date of this Agreement, you shall have received a letter dated the date hereof, in form and ~~sale~~ substance satisfactory to you, from the Corporation's independent public accountants, containing statements and information of the ~~Securities~~ type ordinarily included in ~~accordance~~ accountants' "comfort letters" to underwriters with respect to the ~~provisions hereof shall not be prohibited~~ financial statements and certain financial information contained in or incorporated by ~~any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada,~~ reference into the ~~United States of America, the Province or the State of New York~~Prospectus. (j) ~~The Province~~ At the Closing Date you shall have ~~furnished~~ received from the Corporation's independent public accountants a letter, dated the Closing Date, to the ~~Underwriters and~~ effect that such accountants reaffirm the statements made in the letter furnished pursuant to ~~counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. k~~paragraph (i) ~~Subsequent to the execution~~ of this ~~Agreement and~~ Section 6, except that the specified date referred to shall be a date not more than three business days prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The ~~Province~~ Corporation will furnish ~~the Underwriters~~ you with such conformed copies of such opinions, certificates, letters and documents as ~~the Representatives~~ you reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.

Appears in 1 contract

Samples: Underwriting Agreement (Duke Capital Financing Trust Vi)

Conditions of the Obligations of the Underwriters. ~~The respective~~ In addition to the execution and delivery of the Price Determination Agreement, the obligations of the ~~several~~ Underwriters ~~to purchase and pay for the Securities will be~~ hereunder are subject to the accuracy of the representations and warranties on the part of the Province herein, to the accuracy of the statements of the representatives of the Province made pursuant to the provisions hereof, to the performance by the Province of its obligations hereunder and with regard to the Securities and to the following ~~additional conditions precedent~~conditions: (a) ~~Prior to the Closing Date,~~ The Prospectus shall have been filed as required by Section 3(a) and (i) no stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement shall have been issued and no proceedings for that purpose shall ~~have been instituted or~~be pending or threatened by the Commission, to (ii) no order suspending the ~~knowledge~~ effectiveness of the ~~Province~~ Registration Statement or the ~~Representatives,~~ qualification or registration of the Securities under the securities or blue sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by the ~~SEC; and each Issuer Free Writing Prospectus~~Commission or the authorities of any such jurisdiction, to (iii) any request for additional information on the ~~extent required by Rule 433 under~~ part of the ~~Securities Act,~~ staff of the Commission or any such authorities shall have been ~~filed~~ complied with to the ~~SEC under~~ satisfaction of the ~~Securities Act;~~ staff of the Commission or such authorities and (iv) after the ~~Final~~ date hereof no amendment or supplement to the Registration Statement or the Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters and the Underwriters did not object thereto in good faith. (b) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of Operating Partnership and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) neither the Company nor any of its subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order 14 or decree, which is not set forth in the ~~SEC pursuant~~ Registration Statement and the Prospectus, if in the judgment of the Underwriters any such development makes it impracticable or inadvisable to ~~Rule 424 not later than 5:00 p.m. New York City time~~consummate the sale and delivery of the Securities by the Underwriters and at the public offering price. (c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its subsidiaries or any of their respective officers or directors or trustees, as the case may be, in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceeding it is reasonably probable that an unfavorable ruling, decision or finding would have a Material Adverse Effect. (d) Each of the representations and warranties of the REIT and the Operating Partnership contained herein shall be true and correct in all material respects at the Closing Date, as if made at the Closing Date, and all covenants and agreements contained herein to be performed on the ~~second business day following~~ part of the ~~date of this Agreement~~Company and all conditions contained herein to be fulfilled or complied with by the Company at or prior to the Closing Date, shall have been duly performed, fulfilled or complied with. b(e) Subsequent to the execution and delivery of this Underwriting Agreement and prior to the Closing Date, there shall not have occurred any ~~material adverse change~~ downgrading in the ~~financial, economic~~ rating accorded the Securities or ~~political condition~~ any other debt securities of the ~~Province from~~ Company by any Rating Agency nor shall any notice have been given to the Company of (i) any intended or potential downgrading by any Rating Agency in such securities, or (ii) any review or possible change by any Rating Agency that ~~set forth in the Registration Statement~~does not indicate a stable, ~~the Time of Sale Information and the Final Prospectus; and the~~ positive or improving rating accorded such securities. (f) The Underwriters shall have ~~received~~received one or more opinions, ~~on the Closing Date, a certificate~~ dated the Closing Date and ~~signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance~~ satisfactory in form and substance to the ~~Representatives~~ Underwriters' counsel, from Goodxxx, Xxocter & Hoar XXX, counsel to the Company, (i) to the effect set forth in EXHIBIT B and (ii) concerning the tax matters set forth below: (i) Commencing with the Company's first ~~clause~~ taxable year ended December 31, 1994, the Company has been organized in conformity with the requirements for qualification as a REIT under the Code, and the Company's method of ~~this Section 9(b)~~operation, as described in the Prospectus and in company certificates delivered to such counsel, will enable it to continue to meet the requirements for qualification and taxation as a REIT under the Code; and (ii) Subject to a discussion of the Taxpayer Relief Act of 1997, which may be included in such opinion, the statements in the Prospectus Supplement and the Prospectus under the captions "Certain Federal Income Tax Consequences" and "Federal Income Tax Considerations," to the extent such information constitutes matters of law, summaries of legal matters, or legal conclusions, have been reviewed by such counsel and are accurate in all material respects as of the date of such opinion. c(g) The Underwriters shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Provinceopinion, dated the Closing Date, from O'Melveny & Myerx XXX, Underwriters' counsel, with respect to the ~~effect that under~~ Registration Statement, 15 the ~~laws of British Columbia~~ Prospectus and ~~Canada and subject~~ this Agreement, which opinion shall be satisfactory in all respects to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the ~~Securities~~Underwriters. (iih) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance Concurrently with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this ~~Agreement and the Fiscal Agency~~ Agreement, the ~~issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder~~ Accountants shall have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available furnished to the ~~Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not~~ Underwriters a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canadaletter, dated the ~~Closing Date~~date of its delivery, as addressed to the ~~matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications~~ Underwriters and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to ~~them~~ the Underwriters, confirming that they are independent accountants with respect to the Company as required by the Act and ~~they believe that~~ the ~~Representatives are justified~~ Rules and Regulations and with respect to the financial and other statistical and numerical information contained in ~~relying thereon. e) The Underwriters shall have received~~ the ~~opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated~~ Registration Statement or incorporated by reference therein. At the Closing Date, ~~subject~~ the Accountants shall have furnished to ~~such qualifications and based upon such assumptions as are customary~~ the Underwriters a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the ~~United States~~ letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in ~~respect~~ the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date which would require any change in their letter dated the date hereof if it were required to be dated and delivered at the Closing Date. (i) At the Closing Date, there shall be furnished to the Underwriters an accurate certificate, dated the date of ~~such opinion~~its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of each of (a) Gables GP on behalf of the Operating Partnership and (b) the REIT, in form and substance satisfactory to the Underwriters, to the effect that: (i) The ~~Securities are exempted securities~~ Prospectus has been filed as required by Section 3(a) and no stop order suspending the effectiveness of the Registration Statement under the ~~Trust Indenture~~ Act or the blue sky laws of ~~1939~~any jurisdiction has been issued and, ~~as amended (~~to the ~~“Trust Indenture Act”)~~best of their knowledge, information and belief, no ~~qualification~~ proceeding for such purpose is pending before or threatened or contemplated by the Commission or the authorities of ~~an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities~~any such jurisdiction. (ii) ~~The statements in~~ Any request for additional information on the ~~Time~~ part of ~~Sale Information and Final Prospectus under “Description~~ the staff of ~~Bonds” and “Description~~ the Commission or any such authorities has been complied with to the satisfaction of ~~Debt Securities and Warrants”, insofar as~~ the staff of the Commission or such ~~statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein~~authorities. (iii) ~~The statements in~~ Each signer of such certificate has carefully examined the ~~Time of Sale Information,~~ Registration Statement and ~~Final~~ the Prospectus (including any documents filed under ~~“Description of Debt Securities~~ the Exchange Act and ~~Warrants — United States Federal Income Taxation”, as supplemented~~ deemed to be incorporated by ~~“Tax Matters — United States Taxation”, to~~ reference into the ~~extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv~~Prospectus) ~~Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province~~ and ~~their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that~~ (A) ~~the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment),~~ believes that as of the date of ~~this Agreement~~such certificate, ~~contained an untrue statement of a~~ such documents are true and correct in all material ~~fact or omitted~~ respects and do not omit to state a material fact required to be stated therein or necessary in order to make the statements therein not ~~misleading;~~ untrue or misleading and (B) does not know of any event that has occurred as a result of which it is necessary to amend or supplement the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, contained an untrue statement of a material fact or omitted to state a material fact necessary Prospectus in order to make the statements ~~therein,~~ therein not untrue or misleading in any material respect and there has been no document required to be filed under the ~~light of~~ Exchange Act and the ~~circumstances under which they were made, not misleading; or (C)~~ Exchange Act Rules and Regulations that upon such filing would be deemed to be incorporated by reference into the ~~Final~~ Prospectus ~~(other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel~~ that has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunderso filed. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) ~~(but only as~~ Each of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of the ~~Province~~ Company contained in this Agreement ~~are~~ were, when originally made, and are, at the time such certificate is delivered, true and ~~correct, that~~ correct in all material respects. (v) Each of the ~~Province has complied with all agreements and satisfied all conditions on its part~~ covenants required to be performed ~~or satisfied at~~ by the Company herein on or prior to the ~~Closing Date~~delivery of such certificate has been duly, ~~that no stop order suspending~~ timely and fully performed and each condition herein required to be complied with by the ~~effectiveness~~ Company on or prior to the date of such certificate has been duly, timely and fully complied with. (vi) Since the execution and delivery of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the SEC. i) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province shall have furnished to the Underwriters and to counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. k) Subsequent to the execution of this Underwriting Agreement and prior to the Closing Date, there ~~shall~~ has not ~~have~~ occurred any ~~downgrading,~~ downgrading in the rating accorded the Securities or any other debt securities of the Company by any Rating Agency nor ~~shall~~ has any notice ~~have~~ been given to the Company of (A) any intended or potential downgrading by any Rating Agency in such securities, or of (B) any ~~placing~~ review or possible change by any Rating Agency that does not indicate a stable, positive or improving rating accorded such securities. (j) The Securities shall be qualified for sale in such states as the Underwriters may reasonably request, each such qualification shall be in effect and not subject to any stop order or other proceeding on ~~credit watch with negative implications~~the Closing Date. (k) The Company shall have furnished to the Underwriters such certificates, ~~in the ratings accorded the debt securities~~ including, without limitation, one or more certificates of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The Province will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. If any Secretary of the ~~above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement~~ REIT and ~~all obligations~~ the Secretary of ~~the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives~~ Gables GP on behalf of the ~~Underwriters~~Operating Partnership, ~~without any liability on~~ in addition to those otherwise specifically mentioned herein, as the ~~part~~ Underwriters may have reasonably requested as to the accuracy and completeness at the Closing Date of any ~~Underwriter~~ statement in the Registration Statement or the Prospectus or any documents filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus, as to the ~~Province or~~ accuracy at the Closing Date of the ~~Province~~ representations and warranties of the Company herein as to ~~any Underwriter, except~~ the performance by the Company of its obligations hereunder or as ~~provided in Section 6, Section 10~~ to the fulfillment of the conditions concurrent and ~~Section 13 hereof. Notice~~ precedent to the obligations hereunder of ~~such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement~~the Underwriters.

Appears in 1 contract

Samples: Underwriting Agreement (Gables Realty Limited Partnership)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the several Underwriters to purchase and pay for the ~~Securities will~~ Firm Common Shares on the First Closing Date and the Optional Common Shares on the Second Closing Date shall be subject to the accuracy of the representations and warranties on the part of the ~~Province herein~~Company herein set forth as of the date hereof and as of the First Closing Date or the Second Closing Date, as the case may be, to the accuracy of the statements of ~~the representatives of the Province~~ Company officers made pursuant to the provisions hereof, to the performance by the ~~Province~~ Company of its obligations ~~hereunder and with regard to the Securities~~ hereunder, and to the following additional ~~conditions precedent~~conditions: (a) ~~Prior~~ The Registration Statement shall have become effective not later than 4:00 P.M., Colorado time, on the date following the date of this Agreement, or at such later time as shall have been consented to ~~the Closing Date,~~ in writing by you; and no stop order suspending the effectiveness ~~of the Registration Statement, as amended from time to time,~~ thereof shall have been issued and no proceedings for that purpose shall have been ~~instituted~~ initiated or, to the knowledge of the ~~Province~~ Company or any Underwriter, threatened by the Commission, and any request of the Commission for additional information (to be included in the Registration Statement or the ~~Representatives, shall be contemplated by the SEC; and each Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act,~~ Prospectus or otherwise) shall have been ~~filed~~ complied with to the ~~SEC under~~ satisfaction of Underwriters' counsel. (b) All corporate proceedings by the ~~Securities Act;~~ Company and other legal matters in connection with this Agreement, the form of the Registration Statement and the ~~Final Prospectus~~ Prospectus, and the registration, qualification, authorization, issue, sale and delivery of the Common Shares shall have been ~~filed~~ reasonably satisfactory to Underwriters' counsel, and such counsel shall have been furnished with such papers and information as counsel may reasonably have requested to enable counsel to pass upon the ~~SEC pursuant~~ matters referred to ~~Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of~~ in this ~~Agreement~~Section. b(c) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any material adverse change in the financial, economic or political condition of the Province from that set forth in the Registration Statement, the Time of Sale Information and the Final Prospectus; and the Underwriters shall have received, on the Closing Date, a certificate dated the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth in the first clause of this Section 9(b). c) The Underwriters shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Province, dated the Closing Date, to the effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and prior to the ~~Fiscal Agency Agreement~~First Closing Date and the Second Closing Date, if applicable, there shall not have been any change in the ~~issuance~~ condition (financial or otherwise), earnings, operations, business or business prospects of the ~~Securities~~ Company from that set forth in the Registration Statement or Prospectus, which, in your sole judgment, is material and adverse and that makes it, in your sole judgment, impracticable or inadvisable to proceed with the ~~performance~~ public offering of the Common Shares as contemplated by the ~~Province of its obligations hereunder and thereunder have been obtained and are in full force and effect~~Prospectus. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) ~~The Underwriters~~ You shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated the Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the ~~basis of an independent examination of such records, certificates~~ First Closing Date and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representativeson any later date on which Common Shares are purchased, as the case may be, ~~Canadian counsel to~~ the ~~Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereon. e) The Underwriters shall have received the~~ following opinion of ~~Sxxxxxxx~~ Xxxxxxxx, Xxxxx & ~~Sterling LLP~~Xxxxxxx, ~~United States~~ counsel for the ~~Province~~Company, dated the First Closing ~~Date~~Date or such later date on which Optional Common Shares are purchased, ~~subject~~ addressed to ~~such qualifications~~ the Representative, on behalf of the Underwriters (and ~~based~~ stating that it may be relied upon ~~such assumptions as are customary in~~ by counsel for the ~~United States in respect of such opinion~~Underwriters), to the effect that: (i) The ~~Securities are exempted securities~~ Company is a corporation in good standing under the ~~Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect~~ laws of the ~~Securities under the Trust Indenture Act is required for the issuance, sale and delivery~~ jurisdiction of ~~the Securities.~~its incorporation; (ii) The ~~statements~~ Company has the corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein.Prospectus; (iii) The ~~statements~~ Company is duly qualified to do business as a foreign corporation and is in good standing in each jurisdiction, if any, in which the ~~Time~~ ownership or leasing of ~~Sale Information~~its properties or the conduct of its business requires such qualification, ~~and Final Prospectus under “Description~~ except where failure to be so qualified or be in good standing would not have a material adverse effect on the condition (financial or otherwise), earnings, operations or business of ~~Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to~~ the ~~extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein.~~Company; (iv) ~~Based upon~~ To such counsel~~’s participation in conferences with representatives~~ 's knowledge, the Company does not own or control, directly or indirectly, any corporation, association or other entity; (v) The authorized, issued and outstanding capital stock of the ~~Province~~Company is as set forth in the Prospectus under the caption "Capitalization" as of the dates stated therein, ~~counsel for~~ the ~~Province~~ issued and ~~their examination~~ outstanding shares of ~~specified documents~~capital stock of the Company have been duly and validly issued and are fully paid and nonassessable, ~~no facts have come~~ and, to such counsel~~’s attention which caused such counsel~~ 's knowledge, will not have been issued in violation of or subject to ~~believe that~~ any preemptive right, co-sale right, registration right, right of first refusal or other similar right of stockholders; (Avi) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement The Firm Common Shares and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officerOptional Common Shares, as the case may be, to be issued by the ~~best~~ Company pursuant to the terms of ~~his~~ this Agreement each have been duly authorized and, upon issuance and delivery against payment therefor in accordance with the terms hereof, will be duly and validly issued and fully paid and nonassessable, and will not have been issued in violation of or ~~her knowledge after reasonable investigation~~subject to any preemptive right, ~~shall state that~~ co-sale right, registration right, right of first refusal or other similar right of stockholders; (vii) The Company has the ~~representations~~ corporate power and ~~warranties~~ authority to enter into this Agreement and to issue, sell and deliver to the Underwriters the Common Shares to issued and sold by it hereunder; (viii) The Company has the corporate power and authority to issue, sell and deliver to the Representative the Representative's Warrants to be issued and sold by it hereunder; (ix) Each of this Agreement and the Representative's Warrant has been duly authorized by all necessary corporate action on the part of the ~~Province~~ Company and has been duly executed and delivered by the Company and, assuming due authorization, execution and delivery by you, is a valid and binding agreement of the Company, enforceable in ~~this Agreement are true~~ accordance with its terms, except insofar as indemnification provisions may be limited by applicable law and ~~correct~~except as enforceability may be limited by bankruptcy, ~~that~~ insolvency, reorganization, moratorium or similar laws relating to or affecting creditors' rights generally or by equitable principles; (x) The Registration Statement has become effective under the ~~Province has complied with all agreements and satisfied all conditions on its part~~ Act and, to ~~be performed or satisfied at or prior to the Closing Date~~such counsel's knowledge, ~~that~~ no stop order suspending the effectiveness of the Registration Statement has been issued and no ~~proceedings~~ proceeding for that purpose have been instituted or are ~~contemplated by~~ pending or threatened under the ~~SEC.~~Act; i(xi) The ~~purchase~~ Registration Statement and ~~sale~~ the Prospectus, and each amendment or supplement thereto (other than the financial statements (including supporting schedules) and financial data derived therefrom as to which such counsel need express no opinion), as of the effective date of the Registration Statement, complied as to form in all material respects with the requirements of the Securities ~~in accordance with~~ Act of 1933 and the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York.applicable Rules and Regulations thereunder; j(xii) The ~~Province shall have furnished to~~ information in the ~~Underwriters~~ Prospectus under the captions "Management," "Certain Transactions," "Description of Capital Stock," and ~~to counsel~~ "Shares Eligible for Future Sale," and in the ~~Underwriters~~ Registration Statement in Items 24 and 26 and insofar as such ~~further certificates and documents as the Representatives and~~ information constitutes matters of law or legal conclusions, has been reviewed by such counsel ~~reasonably request. k) Subsequent to the execution of this Agreement~~ and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The Province will furnish the Underwriters with such conformed copies is a fair summary of such ~~opinions, certificates, letters~~ matters and documents as the Representatives reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.conclusions;

Appears in 1 contract

Samples: Underwriting Agreement (Eldorado Artesian Springs Inc)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of ~~the several Underwriters to purchase and pay for the Securities will be~~ each Underwriter hereunder are subject to the ~~accuracy~~ following conditions: (a) All filings required by Rule 424 of the ~~representations~~ Rules and ~~warranties~~ Regulations shall have been made. If the Company has elected to rely upon Rule 462(b), the registration statement filed under Rule 462(b) shall have become effective by 10:00 p.m., Washington, D.C. time, on the ~~part~~ date of the Province herein, to the accuracy of the statements of the representatives of the Province made pursuant to the provisions hereof, to the performance by the Province of its obligations hereunder and with regard to the Securities and to the following additional conditions precedent:this Agreement. a(i) ~~Prior to the Closing Date, no~~ No stop order suspending the effectiveness of the Registration ~~Statement~~Statement or preventing or suspending the use of the Base Prospectus, ~~as amended from time to time~~any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall ~~have been instituted~~ be pending or, to the ~~knowledge~~ Company’s knowledge, threatened by the Commission, (ii) no order suspending the effectiveness of the ~~Province~~ Registration Statement or the ~~Representatives,~~ qualification or registration of the Shares under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or, to the Company’s knowledge, threatened or contemplated by the ~~SEC; and each Issuer Free Writing Prospectus~~Commission or the authorities of any such jurisdiction, to (iii) any request for additional information on the ~~extent required by Rule 433 under~~ part of the ~~Securities Act,~~ staff of the Commission or any such authorities shall have been ~~filed with the SEC under the Securities Act; and the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time~~complied with, ~~on the second business day following~~ (iv) after the date ~~of this Agreement. b) Subsequent~~ hereof no amendment or supplement to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any material adverse change in the financial, economic or political condition of the Province from that set forth in the Registration Statement, the ~~Time of Sale Information~~ Prospectus, the Pricing Prospectus or shall have been filed unless a copy thereof was first submitted to the Representatives and the ~~Final Prospectus; and~~ Representatives do not object thereto in good faith, (v) the ~~Underwriters~~ Representatives shall have ~~received~~received certificates, on dated the Closing ~~Date~~Date and, ~~a certificate dated~~ if later, the Option Closing Date and signed by the ~~Minister of Finance~~ Chief Executive Officer and the Chief Financial Officer of the ~~Province~~Company (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii) of this paragraph; and (vi) FINRA shall have raised no objection to the fairness and reasonableness of the terms of this Agreement or the transactions contemplated hereby. (c) Since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, (i) there shall not have been a material adverse change in the general affairs, business, prospects, properties, management, condition (financial or otherwise) or results of operations of the Company or any of its Subsidiaries, whether or not arising from transactions in the ordinary course of business, in each case other than as described in or contemplated by the Registration Statement and the Pricing Prospectus, and (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not described in the Registration Statement and the Pricing Prospectus, if in the judgment of the Representatives any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price in this Offering. (d) Since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there shall have been no litigation or other proceeding instituted against the Company, any of its Subsidiaries, or any of their officers or directors in their capacities as such, before or by any federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceeding an unfavorable ruling, decision or finding would, in the judgment of the Representatives, have a Material Adverse Effect or if, in the judgment of the Representatives, any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price in this Offering. (e) Each of the representations and warranties of the Company contained herein shall be true and correct in all respects (in the case of any representation and warranty containing a materiality or Material Adverse Effect qualification) or in all material respects (in the case of any other representation and warranty) at the Closing Date and, with respect to the Option Shares, at the Option Closing Date, and all covenants and agreements contained herein to be performed on the part of the Company and all conditions contained herein to be fulfilled or complied with by the Company at or prior to the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respects. (f) The Representatives shall have received (i) an opinion and negative assurances letter, dated the Closing Date and, with respect to the Option Shares, the ~~Deputy Minister of Finance of~~ Option Closing Date, reasonably satisfactory in all respects to the ~~Province or another officer of~~ Representatives and counsel for the ~~Ministry of Finance~~ Underwriters from Xxxxx Day, counsel to the Company, substantially in the form set forth in Schedule IV hereto, and (ii) an opinion letter from the Company’s internal corporate counsel in the form and substance reasonably satisfactory to the Representatives to and counsel for the ~~effect set forth in the first clause of this Section 9(b)~~Underwriters. c(g) The ~~Underwriters~~ representatives shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Provinceand negative assurance letter, dated the Closing Date, to the effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings Date or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated the Option Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, ~~Canadian~~ from Proskauer Rose LLP, counsel to the ~~Province~~Underwriters, is with respect to the Registration Statement, the Prospectus and this Agreement, which opinion and negative assurance letter shall be reasonably satisfactory in all respects to the Representatives. (h) Concurrently with the execution and delivery of this Agreement, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, addressed to the Representatives and in form and substance satisfactory to ~~them~~ the Representatives, confirming that they are independent accountants with respect to the Company and ~~they believe that~~ its Subsidiaries as required by the Act and the Exchange Act and the Rules and Regulations and the PCAOB (United States) and stating the conclusions and findings of such firm, of the type ordinarily included in accountants’ “comfort letters” to underwriters, with respect to certain financial and other statistical and numerical information contained or incorporated by reference in the Registration Statement, the Prospectus and the General Disclosure Package. At the Closing Date and, as to the Option Shares, the Option Closing Date (if such date is other than the Closing Date), the Accountants shall have furnished to the Representatives ~~are justified~~ a “bring-down comfort letter,” dated the date of its delivery, which shall confirm, on the basis of a review in ~~relying thereon~~accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three (3) days prior to the Closing Date or the Option Closing Date, as the case may be, which would require any change in their letter dated the date hereof if it were required to be dated and delivered at the Closing Date and the Option Closing Date (if such date is other than the Closing Date), as the case may be. e(i) ~~The Underwriters~~ At the Closing Date and, as to the Option Shares, the Option Closing Date, there shall ~~have received~~ be furnished to the ~~opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province~~Representatives a certificate, dated the ~~Closing Date~~date of its delivery, ~~subject~~ signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to ~~such qualifications and based upon such assumptions as are customary in~~ the ~~United States in respect of such opinion~~Representatives, to the effect that: (i) ~~The Securities are exempted securities~~ Each signer of such certificate has carefully examined the Registration Statement, the Prospectus and the General Disclosure Package (including any documents filed under the ~~Trust Indenture~~ Exchange Act ~~of 1939, as amended (~~and deemed to be incorporated by reference into the ~~“Trust Indenture Act”),~~ Pricing Prospectus and ~~no qualification of an indenture in respect of~~ the ~~Securities under the Trust Indenture Act is required for the issuance, sale~~ Prospectus) and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) ~~the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment),~~ as of the date of ~~this Agreement~~such certificate, ~~contained an untrue statement of a~~ such documents are true and correct in all material ~~fact or omitted~~ respects and do not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, and in respect of the Prospectus, in light of the circumstances under which they were made, not ~~misleading;~~ untrue or misleading and (CB) in the ~~Final Prospectus (other than~~ case of the ~~financial statements~~ certificate delivered at the Closing Date and ~~other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or~~ the Option Closing Date, ~~contained~~ since the Effective Date no event has occurred as a result of which it is necessary to amend or ~~contains an untrue statement of a material fact or omitted or omits to state a material fact necessary~~ supplement the Prospectus in order to make the statements ~~therein, in the light of the circumstances under which they were made,~~ therein not untrue or misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f(ii) ~~The Underwriters shall have received an opinion~~ Each of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of the ~~Province~~ Company contained in this Agreement ~~are~~ were, when originally made, and are, at the time such certificate is delivered, true and ~~correct, that~~ correct in all respects (in the ~~Province has complied with~~ case of any representation and warranty containing a materiality or Material Adverse Effect qualification) or in all ~~agreements~~ material respects (in the case of any other representation and ~~satisfied all conditions on its part~~ warranty). (iii) Each of the covenants required to be performed by the Company herein on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be satisfied at or fulfilled on or prior to the date of such certificate has been duly, timely and fully satisfied or fulfilled. (j) On or prior to the Closing Date, ~~that no~~ the Representatives shall have received the executed agreements referred to in Section 4(n). (k) The Shares shall be qualified for sale in such jurisdictions as the Representatives may reasonably request and each such qualification shall be in effect and not subject to any stop order ~~suspending~~ or other proceeding on the ~~effectiveness of~~ Closing Date or the ~~Registration Statement has been issued~~ Option Closing Date. (l) At the Closing Date, or any Option Closing Date, the Shares and ~~no proceedings for that purpose~~ any Option Shares, as applicable, shall have been ~~instituted or are contemplated by~~ duly listed for quotation on the ~~SEC~~NGM. i(m) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province Company shall have furnished to the ~~Underwriters and~~ Representatives such certificates (including a Secretary’s Certificate), in addition to ~~counsel for the Underwriters such further certificates and documents~~ those specifically mentioned herein, as the Representatives may have reasonably requested as to, including but not limited to, the accuracy and ~~such counsel reasonably request. k) Subsequent to the execution of this Agreement and prior to~~ completeness at the Closing Date, ~~there shall not have occurred any downgrading~~and if later, ~~nor shall any notice have been given~~ the Option Closing Date, of any ~~intended or potential downgrading or of any placing on credit watch with negative implications,~~ statement in the ~~ratings accorded~~ Registration Statement, the ~~debt securities of~~ Prospectus or the ~~Province by any nationally recognized statistical rating agency in the United States. All such opinions~~General Disclosure Package, ~~certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory~~ as to the Representatives. The Province will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or accuracy at ~~any time prior to,~~ the Closing Date and the Option Closing Date of the representations and warranties of the Company herein, as to the performance by the ~~Representatives on behalf~~ Company of its obligations hereunder, or as to the fulfillment of the ~~Underwriters, without any liability on the part of any Underwriter~~ conditions concurrent and precedent to the ~~Province or~~ obligations hereunder of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this AgreementRepresentatives.

Appears in 1 contract

Samples: Underwriting Agreement (Ramtron International Corp)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of ~~the several Underwriters to purchase and pay for the Securities will be~~ each Underwriter hereunder are subject to the ~~accuracy~~ following conditions: (a) All filings required by Rule 424 and Rule 430A of the ~~representations~~ Rules and ~~warranties~~ Regulations shall have been made. If the Company has elected to rely upon Rule 462(b), the registration statement filed under Rule 462(b) shall have become effective by 10:00 p.m., Washington, D.C. time, on the ~~part~~ date of the Province herein, to the accuracy of the statements of the representatives of the Province made pursuant to the provisions hereof, to the performance by the Province of its obligations hereunder and with regard to the Securities and to the following additional conditions precedent:this Agreement. a(i) ~~Prior to the Closing Date, no~~ No stop order suspending the effectiveness of the Registration ~~Statement~~Statement or preventing or suspending the use of the Base Prospectus, ~~as amended from time to time~~any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall ~~have been instituted or~~be pending or threatened by the Commission, to (ii) no order suspending the ~~knowledge~~ effectiveness of the ~~Province~~ Registration Statement or the ~~Representatives,~~ qualification or registration of the Shares under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by the ~~SEC; and each Issuer Free Writing Prospectus~~Commission or the authorities of any such jurisdiction, to (iii) any request for additional information on the ~~extent required by Rule 433 under~~ part of the ~~Securities Act,~~ staff of the Commission or any such authorities shall have been ~~filed~~ complied with to the ~~SEC under~~ satisfaction of the ~~Securities Act; and~~ staff of the ~~Final~~ Commission or such authorities, (iv) after the date hereof no amendment or supplement to the Registration Statement, the Prospectus or the Pricing Prospectus shall have been filed ~~with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this Agreement. b) Subsequent~~ unless a copy thereof was first submitted to the ~~execution~~ Representative within a reasonable period of ~~this Agreement and~~ time prior to the ~~Closing Date~~filing thereof and the Representative does not object thereto in good faith, provided, that in the case of any report on Form 8-K furnished to the Representative for review hereunder, the Representative shall use all commercially reasonable efforts to complete its review within one business day after receiving the report, and its failure to complete the review by such time shall not delay the Company’s timely filing of the Form 8-K, and (v) the Representative shall have received certificates (included as part of the certificates provided pursuant to Section 6(i)), signed by the Chief Executive Officer and the Chief Financial Officer of the Company (who may, as to proceedings threatened, rely upon their information and belief), to the effect of clauses (i), (ii) and (iii) of this paragraph. (c) Since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, (i) there shall not have ~~occurred any~~ been a material adverse change in the ~~financial~~general affairs, ~~economic~~ business, properties, management, condition (financial or ~~political condition~~ otherwise) or results of operations of the ~~Province~~ Company or any of its Subsidiaries, whether or not arising from ~~that set forth~~ transactions in the ordinary course of business, in each case other than as described in or contemplated by the Registration Statement and the Pricing Prospectus, and (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not described in the Registration ~~Statement, the Time of Sale Information~~ Statement and the ~~Final~~ Pricing Prospectus; , if in the judgment of the Representative any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price. (d) Since the respective dates as of which information is given in the Registration Statement and the ~~Underwriters~~ Pricing Prospectus, there shall have ~~received~~been no litigation or other proceeding instituted against the Company, on any of its Subsidiaries, or any of its or their officers or directors in their capacities as such, before or by any federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceeding an unfavorable ruling, decision or finding would, in the judgment of the Representative, have a Material Adverse Effect or if, in the judgment of the Representative, any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price. (e) Each of the representations and warranties of the Company contained herein shall be true and correct in all respects (in the case of any representation and warranty containing a materiality or Material Adverse Effect qualification) or in all material respects (in the case of any other representation and warranty) at the Closing Date and, with respect to the Option Shares, at the Option Closing Date, ~~a certificate~~ and all covenants and agreements contained herein to be performed on the part of the Company and all conditions contained herein to be fulfilled or complied with by the Company at or prior to the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respects. (f) The Representative shall have received an opinion, dated the Closing Date ~~and signed by~~ and, with respect to the ~~Minister of Finance of the Province~~Option Shares, the ~~Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory~~ Option Closing Date, from Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation, special counsel to the ~~Representatives to~~ Company, substantially in the ~~effect~~ form set forth ~~in the first clause of this Section 9(b)~~on Schedule IV hereto. c(g) The ~~Underwriters~~ Representative shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Provinceopinion, dated the Closing Date, to the effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings Date or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated the Option Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, ~~Canadian~~ from Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, counsel to the ~~Province~~Underwriters, is with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be satisfactory in all respects to the Representative. (h) Concurrently with the execution and delivery of this Agreement, the Accountants shall have furnished to the Representative a letter, dated the date of its delivery, addressed to the Representative and in form and substance satisfactory to ~~them~~ the Representative, confirming that they are independent accountants with respect to the Company and ~~they believe that~~ its Subsidiaries as required by the ~~Representatives are justified~~ Act and the Exchange Act and the Rules and Regulations and with respect to certain financial and other statistical and numerical information contained or incorporated by reference in ~~relying thereon. e) The Underwriters~~ the Registration Statement, the Prospectus and the General Disclosure Package. At the Closing Date and, as to the Option Shares, the Option Closing Date, the Accountants shall have ~~received~~ furnished to the ~~opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province~~Representative a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date or the Option Closing Date, ~~subject~~ as the case may be, which would require any change in their letter dated the date hereof if it were required to ~~such qualifications~~ be dated and ~~based upon such assumptions~~ delivered at the Closing Date or the Option Closing Date, as ~~are customary~~ the case may be. (i) At the Closing Date and, as to the Option Shares, the Option Closing Date, there shall be furnished to the Representative a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to the ~~United States in respect of such opinion~~Representative, to the effect that: (i) ~~The Securities are exempted securities~~ Each signer of such certificate has carefully examined the Registration Statement, the Prospectus and the General Disclosure Package (including any documents filed under the ~~Trust Indenture~~ Exchange Act ~~of 1939, as amended (~~and deemed to be incorporated by reference into the ~~“Trust Indenture Act”),~~ Pricing Prospectus and ~~no qualification of an indenture in respect of~~ the ~~Securities under the Trust Indenture Act is required for the issuance, sale~~ Prospectus) and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) ~~the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment),~~ as of the date of ~~this Agreement~~such certificate, ~~contained an untrue statement of a~~ such documents are true and correct in all material ~~fact or omitted~~ respects and do not omit to state a material fact required to be stated therein or necessary in order to make the statements therein not ~~misleading;~~ untrue or misleading and (B) in the ~~Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as~~ case of the ~~Time~~ certificate delivered at the Closing Date and the Option Closing Date, since the Effective Date no event has occurred as a result of ~~Sale, contained an untrue statement of a material fact~~ which it is necessary to amend or ~~omitted to state a material fact necessary~~ supplement the Prospectus in order to make the statements ~~therein, in the light of the circumstances under which they were made,~~ therein not untrue or misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f(ii) ~~The Underwriters shall have received an opinion~~ Each of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of the ~~Province~~ Company contained in this Agreement ~~are~~ were, when originally made, and are, at the time such certificate is delivered, true and ~~correct, that~~ correct in all respects (in the ~~Province has complied with~~ case of any representation and warranty containing a materiality or Material Adverse Effect qualification) or in all ~~agreements~~ material respects (in the case of any other representation and ~~satisfied all conditions on its part~~ warranty). (iii) Each of the covenants required to be performed by the Company herein on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be satisfied at or fulfilled on or prior to the date of such certificate has been duly, timely and fully satisfied or fulfilled in all material respects. (j) On or prior to the Closing Date, ~~that no~~ the Representative shall have received the executed agreements referred to in Section 4(m). (k) The Shares shall be qualified for sale in such jurisdictions as the Representative may reasonably request and each such qualification shall be in effect and not subject to any stop order ~~suspending~~ or other proceeding on the ~~effectiveness of~~ Closing Date or the ~~Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the SEC~~Option Closing Date. i(l) Prior to the Closing Date, the Company shall have filed a NASDAQ Notice: Listing of Additional Shares with respect to the Shares and the NGSM shall not have objected to such listing. (m) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province Company shall have furnished to the ~~Underwriters and~~ Representative such certificates, in addition to ~~counsel for the Underwriters such further certificates and documents~~ those specifically mentioned herein, as the ~~Representatives and such counsel~~ Representative may have reasonably ~~request. k) Subsequent~~ requested as to the ~~execution of this Agreement~~ accuracy and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The Province will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or completeness at ~~any time prior to,~~ the Closing Date and the Option Closing Date of any statement in the Registration Statement, the Prospectus or the General Disclosure Package, as to the accuracy at the Closing Date and the Option Closing Date of the representations and warranties of the Company herein, as to the performance by the ~~Representatives on behalf~~ Company of its obligations hereunder, or as to the fulfillment of the ~~Underwriters, without any liability on the part of any Underwriter~~ conditions concurrent and precedent to the ~~Province or~~ obligations hereunder of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this AgreementRepresentative.

Appears in 1 contract

Samples: Underwriting Agreement (Mattson Technology Inc)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the several Underwriters to purchase and pay for the Securities will be subject to the accuracy of the representations and warranties on the part of the ~~Province~~ Company herein, to the accuracy of the statements of ~~the representatives of the Province~~ Company officers made pursuant to the provisions hereof, to the performance by the ~~Province~~ Company of its obligations hereunder ~~and with regard to the Securities~~ and to the following additional conditions precedent: (a) Prior to the Closing Date, no stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement shall have been issued and no proceedings for that ~~purpose~~ purpose, pursuant to Rule 401(g)(2) under the Act or pursuant to Section 8A under the Act, shall have been instituted or, to the knowledge of the ~~Province~~ Company or ~~the Representatives~~you, shall be contemplated by the ~~SEC; and each Issuer Free Writing Prospectus, to~~ Commission. (b) Since the ~~extent required by Rule 433 under~~ respective dates as of which information is given in the ~~Securities Act, shall have been filed with the SEC under the Securities Act;~~ Time of Sale Information and the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this Agreement. b) Subsequent to the execution of this Agreement and prior to the Closing DateProspectus, there shall not have ~~occurred~~ been any ~~material adverse~~ change in the ~~financial, economic or political condition~~ consolidated long-term debt of the ~~Province~~ Company and its subsidiaries (other than changes resulting from the accretion of premium or amortization of debt discount on long-term debt and changes resulting from the issuance of debt securities by the Company that have occurred, and have been disclosed by the Company to the Underwriters, prior to the date hereof), any change in the capital stock of the Company (except for increases in outstanding capital stock that are not material), or any change or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, viewed as a whole, otherwise than as set forth or contemplated in the Time of Sale Information and the Prospectus, the effect of which, in any such case, is, in the judgment of a majority in interest of the Underwriters after discussion with the Company, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus. (c) You shall have received an opinion letter of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Company, or such other counsel as is acceptable to the Representative, including in-house counsel, dated the Closing Date, to the effect that: (i) The Company has been duly incorporated and is validly existing and in good standing as a corporation under the law of the State of Delaware, and JPMorgan Chase Bank, National Association has been duly organized and is validly existing and in good standing as a national banking association under the laws of the United States, in each case with full corporate power and authority to conduct its business as described in the Registration Statement, the Time of Sale Information and the ~~Final~~ Prospectus; and the Underwriters shall have received, on the Closing Date, a certificate dated the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth in the first clause of this Section 9(b). c) The Underwriters shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Province, dated the Closing Date, to the effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (ii) ~~This Agreement and the Fiscal Agency Agreement have~~ The Indenture has been duly authorized, executed and delivered by the ~~Province~~ Company and ~~each~~ duly qualified under the Trust Indenture Act, and, assuming that the Indenture is the valid and legally binding obligation of the Trustee, constitutes a valid and legally binding ~~agreement~~ obligation of the ~~Province~~Company enforceable against the Company in accordance with its terms, ~~except as~~ subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights ~~to indemnity~~ generally, general equitable principles (whether considered in a proceeding in equity or at law) and ~~contribution hereunder may be limited under applicable law~~an implied covenant of good faith and fair dealing. (iii) The ~~Securities~~Notes have been duly authorized, ~~when duly executed, authenticated~~ executed and ~~delivered to and paid for~~ issued by the ~~Underwriters~~ Company and, assuming due authentication thereof by the Trustee or the Bank of New York Mellon as Authenticating Agent under the Indenture and on behalf of the Trustee, and upon payment and delivery in accordance with the ~~provisions of this Agreement and the Fiscal Agency~~ Underwriting Agreement, will constitute ~~valid,~~ valid and legally ~~binding, direct and unconditional general~~ binding obligations of the ~~Province~~ Company enforceable against the Company in accordance with their ~~respective~~ terms and ~~will rank equally and ratably with all other unsecured and unsubordinated indebtedness~~ entitled to the benefits of the ~~Province outstanding on~~ Indenture, subject to the ~~date~~ effects of ~~issue~~ bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of ~~the Securities~~good faith and fair dealing. (iv) ~~All authorizations~~The Notes, ~~approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution~~ upon payment and delivery ~~of this Agreement and~~ in accordance with the ~~Fiscal Agency~~ Underwriting Agreement, will be entitled to the ~~issuance~~ benefits of the ~~Securities~~ guarantee of the FDIC in accordance with the terms and conditions of the ~~performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect~~TLG Program. (v) ~~Proceedings may be brought against~~ The Underwriting Agreement has been duly authorized, executed and delivered by the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of CanadaCompany. (vi) The issue and sale of the Notes by the Company and the execution, delivery and performance by the Company of this Underwriting Agreement and the Notes will not breach, or result in a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument filed or incorporated by reference as an exhibit to the Registration Statement or any of the Company’s reports filed pursuant to the Exchange Act identified in such opinion (collectively the “Exchange Act Documents”), nor will such actions violate the Certificate of Incorporation or By-laws of the Company or any federal or New York statute or the Delaware General Corporation Law or any rule or regulation that has been issued pursuant to any federal or New York statute or the Delaware General Corporation Law or any order known to such counsel issued pursuant to any federal or New York statute or the Delaware General Corporation Law by any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties. (vii) No consent, approval, authorization, order, registration or qualification of or with any federal or New York governmental agency or body or any Delaware governmental agency or body acting pursuant to the Delaware General Corporation Law or, to such counsel’s knowledge, any federal or New York court or any Delaware court acting pursuant to the Delaware General Corporation Law is required for the issue and sale of the Securities by the Company, except such as have been obtained under the Act and the Exchange Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Securities by the Underwriters. (viii) The statements made in the Time of Sale Information and ~~Final~~ the Prospectus under the ~~caption~~ captions “Description of ~~Bonds”,~~ the Notes” and “Description of Debt Securities,” [INSERT OTHER RELEVANT CAPTIONS] insofar as ~~such statements~~ they purport to constitute ~~a summary~~ summaries of ~~the~~ certain terms of documents referred to therein, ~~are~~ constitute accurate summaries of such documents in all material respects~~, subject to the qualifications therein stated~~. (~~vii~~ix) The statements made in the ~~Time of Sale Information and Final~~ Prospectus under the ~~caption “Tax Matters—Canadian Taxation” (which references the statements under~~ captions “Description of ~~Debt Securities and Warrants~~the Notes—~~Canadian Taxation”),~~ Description of FDIC Guarantee,” insofar as they purport to ~~the extent that they~~ constitute summaries of ~~legal matters~~ certain terms and conditions of the TLG Program and of documents referred to therein, ~~fairly summarize~~ constitute accurate summaries of the terms of the TLG Program and such documents in all material ~~respects the legal matters referred to therein~~respects. (x) The Registration Statement has become effective under the Act, and the Prospectus was filed with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission under the Act; and, to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been instituted or threatened by the Commission. (xi) To the knowledge of such counsel, there are no contracts or documents of a character required to be described in the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement or incorporated by reference therein which are not described and filed or incorporated by reference as required. (d) ~~The Underwriters~~ You shall have received ~~an opinion of Oxxxx~~from Cravath, ~~Hxxxxx~~ Swaine & ~~Harcourt~~ Xxxxx LLP, ~~Canadian~~ counsel to for the Underwriters, ~~given in respect of the laws of British Columbia and Canada~~such opinion or opinions, dated the Closing Date, as with respect to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) incorporation of the ~~Minister of Finance of the Province~~Company, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion, to the effect that: (i) The Securities are exempted securities under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery validity of the Securities, the Registration Statement, the Prospectus, and other related matters as you may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters You shall have received a certificate of the ~~Minister of Finance of the Province~~Chairman, the ~~Deputy Minister of Finance of~~ President, any Vice-Chairman, any Senior Executive Vice President, the ~~Province~~ Chief Financial Officer, any Executive Vice President, the Treasurer or ~~another officer of the Ministry of Finance of the Province satisfactory to the Representatives~~any Senior Vice President, dated the Closing Date, in which such ~~Minister, Deputy Minister or other~~ officer~~, as the case may be~~, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of the ~~Province~~ Company in this Agreement are true and correct, that the ~~Province~~ Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or pursuant to Section 8A under the Act have been instituted or, to the best of his or her knowledge, are contemplated by the ~~SEC. i) The purchase~~ Commission, and ~~sale~~ that, subsequent to the date of the ~~Securities~~ most recent financial statements in ~~accordance with~~ the ~~provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority~~ Time of ~~Canada,~~ Sale Information and the United States of America, the Province or the State of New York. j) The Province shall have furnished to the Underwriters and to counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. k) Subsequent to the execution of this Agreement and prior to the Closing DateProspectus, there ~~shall not have occurred any downgrading, nor shall any notice have~~ has been ~~given of any intended or potential downgrading or of any placing on credit watch with negative implications,~~ no material adverse change in the ~~ratings accorded the debt securities~~ financial position or results of operations of the ~~Province by any nationally recognized statistical rating agency~~ Company and its subsidiaries except as set forth or contemplated in the ~~United States. All~~ Time of Sale Information and the Prospectus or as described in such ~~opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives~~certificate. The ~~Province~~ Company will furnish ~~the Underwriters~~ you with such conformed copies of such opinions, certificates, letters and documents as ~~the Representatives~~ you reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.

Appears in 1 contract

Samples: Underwriting Agreement (J P Morgan Chase & Co)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of ~~the several Underwriters to purchase and pay for the Securities will be~~ each Underwriter hereunder are subject to the ~~accuracy~~ following conditions: (a) Notification that the Registration Statement has become effective shall be received by the Representatives not later than 5:30 p.m., Eastern time, on the date of this Agreement or at such later date and time as shall be consented to in writing by the Representatives, and all filings required by Rule 424 and Rule 430A of the ~~representations~~ Rules and warranties on the part of the Province herein, to the accuracy of the statements of the representatives of the Province made pursuant to the provisions hereof, to the performance by the Province of its obligations hereunder and with regard to the Securities and to the following additional conditions precedent:Regulations shall have been made. a(i) ~~Prior to the Closing Date, no~~ No stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement shall have been issued and no proceedings for that purpose shall ~~have been instituted or~~be pending or threatened by the Commission, to (ii) no order suspending the ~~knowledge~~ effectiveness of the ~~Province~~ Registration Statement or the ~~Representatives,~~ qualification or registration of the Shares under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by the ~~SEC; and each Issuer Free Writing Prospectus~~Commission or the authorities of any such jurisdiction, to (iii) any request for additional information on the ~~extent required by Rule 433 under~~ part of the ~~Securities Act,~~ staff of the Commission or any such authorities shall have been ~~filed~~ complied with to the ~~SEC under~~ satisfaction of the ~~Securities Act;~~ staff of the Commission or such authorities and (iv) after the ~~Final~~ date hereof no amendment or supplement to the Registration Statement or the Prospectus shall have been filed ~~with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this Agreement. b) Subsequent~~ unless a copy thereof was first submitted to the ~~execution of this Agreement~~ Representatives and ~~prior to~~ the Representatives do not object thereto in good faith, and the Representatives shall have received certificates, dated the Closing Date, there shall not have occurred any material adverse change in the financial, economic or political condition of the Province from that set forth in the Registration Statement, the Time of Sale Information Date and the ~~Final Prospectus; and the Underwriters shall have received, on the Closing Date, a certificate dated the~~ Option Closing Date and signed by the ~~Minister of Finance~~ Chief Executive Officer and the Chief Financial Officer of the ~~Province~~Company (who may, as to proceedings threatened, rely upon the ~~Deputy Minister~~ best of ~~Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives~~ their information and belief), to the effect of clauses (i), (ii) and (iii). (c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) neither the Company nor any of its subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the ~~first clause~~ Registration Statement and the Prospectus, if in the judgment of ~~this Section 9(b)~~the Representatives any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the public offering price. c(d) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company, any of its subsidiaries or any of their officers or directors in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceeding an unfavorable ruling, decision or finding is not adequately covered by insurance and would, in the judgment of the Representatives, materially and adversely affect the business, properties, business prospects, condition (financial or otherwise) or results of operations of the Company and its subsidiaries taken as a whole, if in the judgment of the Representatives any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the public offering price. (e) Each of the representations and warranties of the Company and the Selling Stockholders contained herein shall be true and correct in all material respects at the Closing Date and, with respect to the Option Shares, at the Option Closing Date, except for changes in the ordinary course of business or contemplated by the Registration Statement or Prospectus, and all covenants and agreements contained herein to be performed on the part of the Company and the Selling Stockholders and all conditions contained herein to be fulfilled or complied with by the Company and the Selling Stockholders at or prior to the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with. (f) The ~~Underwriters~~ Representatives shall have received an ~~opinion~~ opinion, dated the Closing Date and, with respect to the Option Shares, the Option Closing Date, satisfactory in form and substance to the Representatives and counsel for the Underwriters from Brown, Rudnick, Freed & Gesmer, P.C., counsel to the Company and the Selling Stockholders, with respect to the matters set forth in Annex A hereto. (g) The Representatives shall have received an opinion, dated the Closing Date and, with respect to the Option Shares, the Option Closing Date, satisfactory in form and substance to the Representatives and counsel for the Underwriters from __________, patent counsel to the Company, with respect to the matters set forth in Annex B hereto. (h) The Representatives shall have received an opinion, dated the Closing Date and the Option Closing Date, from Xxxxx, Xxxxxxx & Xxxxxxxxx, counsel to the Underwriters, with respect to the incorporation of the ~~Attorney General~~ Company, the validity of the ~~Province~~Shares being delivered at such date, the ~~Deputy Attorney General~~ Registration Statement, the Prospectus and this Agreement, which opinion shall be satisfactory in all respects to the Representatives. (i) Concurrently with the execution and delivery of this Agreement, the ~~Province~~Accountants shall have furnished to the Representatives a letter, ~~Assistant Deputy Attorney General~~dated the date of its delivery, ~~Legal Services Branch, Ministry of Attorney General of~~ addressed to the ~~Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province~~ Representatives and in form and substance satisfactory to the Representatives, ~~as Canadian counsel~~ confirming that they are independent accountants with respect to the ~~Province~~Company as required by the Act and the Rules and Regulations. At the Closing Date and, as to the Option Shares, the Option Closing Date, the Accountants shall have furnished to the Representatives a letter, dated the ~~Closing Date~~date of its delivery, to which shall reaffirm all of the ~~effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary~~ statements made in ~~British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities~~their initial letter. (iij) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance Concurrently with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated at the Closing ~~Date~~Date and, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the ProvinceOption Shares, the ~~Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory~~ Option Closing Date, there shall be furnished to the Representatives ~~as to factual matters. The opinion shall state in effect that on~~ an accurate certificate, dated the ~~basis~~ date of ~~an independent examination of such records~~its delivery, ~~certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion~~ signed by each of the ~~Attorney General,~~ Chief Executive Officer and the ~~Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General~~ Chief Financial Officer of the ~~Province~~Company, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to ~~them and they believe that~~ the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinionRepresentatives, to the effect that: (i) ~~The Securities are exempted securities~~ Each signer of such certificate has carefully examined the Registration Statement and the Prospectus (including any documents filed under the ~~Trust Indenture~~ Exchange Act ~~of 1939, as amended (~~and deemed to be incorporated by reference into the ~~“Trust Indenture Act”),~~ Prospectus) and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) ~~the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment),~~ as of the date of ~~this Agreement~~such certificate, ~~contained an untrue statement of a~~ such documents are true and correct in all material ~~fact or omitted~~ respects and do not omit to state a material fact required to be stated therein or necessary in order to make the statements therein not ~~misleading;~~ untrue or misleading and (B~~) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment~~), as in the case of the ~~Time~~ certificate delivered at the Closing Date and the Option Closing Date, since the Effective Date no event has occurred as a result of ~~Sale, contained an untrue statement of a material fact~~ which it is necessary to amend or ~~omitted to state a material fact necessary~~ supplement the Prospectus in order to make the statements ~~therein~~therein not untrue or misleading, in and there has been no document required to be filed under the ~~light of~~ Exchange Act and the ~~circumstances under which they were made, not misleading; or (C)~~ Exchange Act Rules and Regulations that upon such filing would be deemed to be incorporated by reference into the ~~Final~~ Prospectus ~~(other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel~~ that has not been ~~requested~~ so filed. (ii) Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respects. (iii) Each of the covenants required to ~~comment)~~be performed by the Company herein on or prior to the date of such certificate has been duly, as timely and fully performed and each condition herein required to be satisfied or fulfilled on or prior to the date of ~~its date~~ such certificate has been duly, timely and fully satisfied or fulfilled. (k) Concurrently with the execution and delivery of this Agreement and at the Option Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not there shall have been ~~requested to comment) appear on their face to be appropriately responsive in all material respects~~ furnished to the ~~requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received~~ Representatives an ~~opinion of Linklaters LLP, United Kingdom counsel for the Province~~accurate certificate, dated the ~~Closing Date~~date of its delivery, ~~subject~~ signed by the Attorneys on behalf of each of the Selling Stockholders, in form and substance satisfactory to ~~such qualifications and based upon such assumptions as are customary in~~ the ~~United Kingdom in respect of such opinion~~Representatives, to the effect that the ~~statements in~~ representations and warranties of each of the ~~Time of Sale Information,~~ Selling Stockholders contained herein are true and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize correct in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), on and ~~(iv) (but only~~ as of the date of ~~this Agreement~~ such certificate as if made on and as of the date of such certificate, and each of the covenants and conditions required herein to ~~clause~~ be performed or complied with by the Selling Stockholders on or prior to the date of such certificate has been duly, timely and fully performed or complied with. (A)l) ~~of paragraph (e) of this Section 9,~~ The Shares shall be qualified for sale in such jurisdictions as the Representatives may reasonably request and each such qualification shall be in effect and not subject to ~~such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely~~ any stop order or other proceeding on the ~~opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure~~Closing Date or the Option Closing Date. h(m) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory Prior to ~~the Representatives, dated~~ the Closing Date, the Shares shall have been duly authorized for inclusion on Nasdaq upon official notice of issuance. (n) The Company and the Selling Stockholders shall have furnished to the Representatives such certificates, in ~~which such Minister, Deputy Minister or other officer~~addition to those specifically mentioned herein, as the ~~case~~ Representatives may ~~be,~~ have reasonably requested as to the ~~best~~ accuracy and completeness at the Closing Date and the Option Closing Date of ~~his~~ any statement in the Registration Statement or ~~her knowledge after reasonable investigation~~the Prospectus or any documents filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus, ~~shall state that~~ as to the accuracy at the Closing Date and the Option Closing Date of the representations and warranties of the ~~Province in this Agreement are true~~ Company and ~~correct~~the Selling Stockholders herein, ~~that the Province has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior~~ as to the ~~Closing Date~~performance by the Company and the Selling Stockholders of its and their respective obligations hereunder, ~~that no stop order suspending~~ or as to the ~~effectiveness~~ fulfillment of the ~~Registration Statement has been issued~~ conditions concurrent and ~~no proceedings for that purpose have been instituted or are contemplated by~~ precedent to the ~~SEC. i) The purchase and sale~~ obligations hereunder of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New YorkRepresentatives. j) The Province shall have furnished to the Underwriters and to counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. k) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The Province will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.

Appears in 1 contract

Samples: Underwriting Agreement (Hologic Inc)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the ~~several~~ Underwriters to purchase and pay for the ~~Securities will be~~ Shares on the Closing Date are subject to the accuracy of the representations and warranties on the part of the ~~Province herein~~Company herein as of such Closing Date, to the accuracy of the statements of ~~the representatives of the Province~~ Company officers made pursuant to the provisions hereof, to the performance by the ~~Province~~ Company of its obligations hereunder ~~and with regard to the Securities~~ and to the following additional conditions precedent: (a) The Underwriters shall have received, on the date hereof, a comfort letter dated as of the date of this Underwriting Agreement, and on the Closing Date, a comfort letter dated as of such Closing Date, addressed to the Underwriters, in form and substance satisfactory to the Underwriters, from Gxxxx Xxxxxxxx LLP confirming that such firm is an independent registered accounting firm within the meaning of the Securities Act and the related Rules and Regulations, and containing such other statements and information as are ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial and statistical information contained in or incorporated by reference in the Registration Statement, the General Disclosure Package and the Prospectus. (b) The Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 4(a) of this Underwriting Agreement. If the Company has elected to rely on Rule 462(b), the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date of this Underwriting Agreement. Prior to ~~the~~ any Closing Date, no stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Province~~ Company or the ~~Representatives~~Underwriters, shall be contemplated by the ~~SEC;~~ Commission. (c) Between the time of execution of this Underwriting Agreement and ~~each Issuer Free Writing Prospectus~~the Closing Date (i) no change, development or event shall have occurred or become known to the ~~extent required by Rule 433 under~~ Company, that would be reasonably expected to result in a Material Adverse Effect (other than as specifically described in the ~~Securities Act,~~ General Disclosure Package) and (ii) no transaction which is material to the Company shall have been ~~filed with~~ entered into by the ~~SEC under the Securities Act; and the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time~~Company, ~~on the second business day following the date of~~ except as required or permitted by this Underwriting Agreement. b(d) ~~Subsequent to the execution of this Agreement and prior to~~ The Underwriters shall have received, on the Closing Date, ~~there~~ an opinion of Winthrop & Weinstine, P.A., counsel for the Company, addressed to the Underwriters, dated as of such Closing Date, and in a form reasonably satisfactory to the Underwriters, which opinion shall ~~not~~ be in substantially the form attached hereto as Exhibit B. (e) The Underwriters shall have ~~occurred any material adverse change in~~ received, on the ~~financial, economic or political condition of the Province from that set forth in the Registration Statement~~Closing Date, the ~~Time~~ opinion of ~~Sale Information~~ Hxxxxx Xxxx Nemerovski Cxxxxx Xxxx & Rxxxxx, A Professional Corporation, counsel for the Underwriters, dated as of such Closing Date, with respect to such matters as the Underwriters may require, and the ~~Final Prospectus;~~ Company shall have furnished to such counsel such documents as they may have requested for the purpose of enabling them to pass upon such matters. (f) The Underwriters shall have received, on the Closing Date, an opinion of Fasken Mxxxxxxxx DuMoulin LLP, Canadian counsel for the Company, addressed to the Underwriters, dated as of such Closing Date, and in a form reasonably satisfactory to the Underwriters, which opinion shall be in substantially the form attached hereto as Exhibit C. (g) The Underwriters shall have received, on the Closing Date, a certificate ~~dated the Closing Date and signed by the Minister of Finance~~ of the ~~Province, the Deputy Minister of Finance~~ President and Chief Executive Officer and Chief Financial Officer of the ~~Province or another officer of the Ministry of Finance satisfactory~~ Company in form and substance reasonably acceptable to the Representatives to the effect set forth in the first clause of this Section 9(b). c) The Underwriters shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the ProvinceUnderwriters, dated ~~the~~ as of such Closing Date, to the effect ~~that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type:~~ that: (i) ~~The Province~~ each such officer has ~~full power and authority to execute and deliver this Agreement and to issue and sell~~ carefully examined the ~~Securities. (ii) This Agreement~~ Registration Statement, the General Disclosure Package and the ~~Fiscal Agency Agreement have been duly authorized, executed~~ Prospectus and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated the Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion, to the effect that: (i) The Securities are exempted securities under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) ~~the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment),~~ as of the date of ~~this Agreement~~such certificate, ~~contained an untrue statement of a~~ such documents are true and correct in all material ~~fact or omitted~~ respects and do not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements made therein, in ~~the~~ light of the circumstances under which they were made, not ~~misleading;~~ untrue or not misleading and (CB) since the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Effective Date, ~~contained~~ no event has occurred as a result of which it is necessary to amend or ~~contains an untrue statement of a material fact or omitted or omits to state a material fact necessary~~ supplement the Prospectus in order to make the statements made therein, in ~~the~~ light of the circumstances under which they were made, not untrue or not misleading~~, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus~~ ; (~~other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment~~ii) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of the ~~Province~~ Company in this Underwriting Agreement are true and ~~correct, that~~ correct in all material respects (if not qualified by materiality or by a reference to a Material Adverse Effect) and in all respects (if qualified by materiality or by reference to a Material Adverse Effect) as of the ~~Province~~ dates on which the representations and warranties were made and as of such Closing Date; (iii) the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to ~~the~~ such Closing Date~~, that~~ ; (iv) no stop order or other order suspending the effectiveness of the Registration Statement or the qualification of the Shares for offering or sale, nor suspending or preventing the use of the General Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus, has been issued by the Commission or any state or regulatory body and no proceedings for that purpose have been instituted or ~~are~~ threatened by the Commission or any state or regulatory body; and (v) subsequent to the respective date of the Company’s most recent financial statements in the General Disclosure Package, there has been no Material Adverse Effect, nor any change, development or event that would be reasonably likely to result in a Material Adverse Effect, except as set forth in or contemplated by the ~~SEC~~General Disclosure Package. (h) The Company shall have obtained and delivered to the Underwriters the Lock-up Agreements referred to in Section 1(gg) hereof. (i) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province Company shall have furnished to ~~the Underwriters and to counsel for~~ the Underwriters such further certificates and documents as the ~~Representatives~~ Underwriters shall reasonably request (including certificates of officers of the Company) as to the accuracy and ~~such counsel reasonably request~~completeness of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder and as to the other conditions concurrent and precedent to the obligations of the Underwriters hereunder. (j) FINRA shall have issued a “no objections” opinion regarding the underwriting terms and arrangements in connection with the sale and issuance of the Shares. (k) ~~Subsequent to the execution of this Agreement and prior to~~ At the Closing Date, ~~there~~ the Shares shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents will be ~~in compliance with the provisions hereof only if they are reasonably satisfactory~~ eligible to the Representatives. The Province will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be ~~terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability~~ traded on the ~~part~~ NASDAQ Capital Market, subject to official notice of ~~any Underwriter to the Province or of the Province to any Underwriter~~issuance, ~~except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement~~if applicable.

Appears in 1 contract

Samples: Underwriting Agreement (Image Sensing Systems Inc)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the ~~several~~ Underwriters to purchase and pay for the ~~Securities~~ Notes will be subject to the accuracy of the representations and warranties on the part of the ~~Province~~ Depositor and MBFS USA herein, to the accuracy of the ~~statements~~ certifications of officers of the ~~representatives of the Province~~ Mercedes Parties made pursuant to the provisions hereof, to the performance by the ~~Province~~ Depositor and MBFS USA of ~~its~~ their obligations hereunder ~~and with regard to the Securities~~ and to the following additional conditions precedent: (a) ~~Prior~~ The Registration Statement shall be effective at the Execution Time, and prior to the 2016-A Closing Date, no stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the Securities Act shall have been instituted or, to the knowledge of the ~~Province~~ Depositor or the Representatives, shall be contemplated by the ~~SEC;~~ Commission. (b) Each of the Preliminary Prospectus and ~~each Issuer Free Writing Prospectus, to~~ the ~~extent required by Rule 433 under the Securities Act,~~ Prospectus and any supplements thereto shall have been filed (if required) with the ~~SEC under~~ Commission in accordance with the ~~Securities Act;~~ Rules and Regulations and Section 6(a) hereof. Each of the Pricing Free Writing Prospectus and the ~~Final~~ Ratings Free Writing Prospectus shall have been filed with the ~~SEC pursuant~~ Commission in accordance with Rule 433 of the Rules and Regulations. (c) On or prior to ~~Rule 424 not later than 5:00 p.m. New York City time, on the second business day following~~ the date of this ~~Agreement~~Agreement and on or prior to the 2016-A Closing Date, the Representatives shall have received a letter or letters, dated as of the date of this Agreement and as of the 2016-A Closing Date, respectively, of an independent registered public accounting firm reasonably acceptable to the Representatives, substantially in the form of the drafts to which the Representatives have previously agreed and otherwise in form and substance satisfactory to the Representatives and their counsel. b(d) Subsequent to the execution and delivery of this ~~Agreement and prior to the Closing Date~~Agreement, there shall not have occurred (i) any ~~material adverse change~~ change, or any development involving a prospective change, in or affecting particularly the business or properties of any Mercedes Party which, in the ~~financial, economic or political condition~~ judgment of the ~~Province from that set forth~~ Representatives, materially impairs the investment quality of the Notes or makes it impractical or inadvisable to market the Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum or maximum prices for trading on such exchange, or a material disruption in commercial banking or securities settlement or clearance services in the ~~Registration Statement~~United States or with respect to Clearstream or Euroclear systems in Europe; (iii) any general commercial banking moratorium declared by Federal, Delaware or New York authorities; 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 the Representatives, the effect of any such outbreak, escalation, declaration, calamity or emergency on the U.S. financial markets makes it impractical or inadvisable to proceed with the offering, sale of and payment for the Notes. (e) The Representatives shall have received opinions of Sidley Austin LLP, counsel to the Mercedes Parties and such other counsel acceptable to the Underwriters, relating to general corporate and enforceability, tax, perfection and priority, and true sale/nonconsolidation matters addressed to the Representatives, dated the 2016-A Closing Date and satisfactory in form and substance to the Representatives and their counsel. Such counsel shall also opine as to such other matters as the Underwriters may reasonably request. (f) The Representatives shall have received opinions of Xxxxxxxx, Xxxxxx & Xxxxxx, P.A., counsel to the Mercedes Parties, the Owner Trustee and the Titling Trustee and such other counsel acceptable to the Underwriters, relating to general corporate and enforceability matters addressed to the Representatives, dated the 2016-A Closing Date and satisfactory in form and substance to the Representatives and their counsel. (g) The Representatives shall have received an opinion addressed to them by Sidley Austin LLP in its capacity as special tax counsel to the Issuing Entity, dated the 2016-A Closing Date, substantially to the effect that the statements in each of the Preliminary Prospectus and the Prospectus under the headings “Summary of Terms––Tax Status” (to the extent relating to Federal income tax consequences), and “Material Federal Income Tax Consequences” to the extent that they constitute statements of matters of law or legal conclusions with respect thereto, have been prepared or reviewed by such counsel and accurately describe the material income tax consequences to holders of the Notes, and the statements in each of the Preliminary Prospectus and the Prospectus under the heading “Summary of Terms––ERISA Considerations” and “Certain ERISA Considerations,” to the extent that they constitute statements of matters of law or legal conclusions with respect thereto, have been prepared or reviewed by such counsel and accurately describe the material consequences to holders of the Notes under ERISA. (h) The Representatives shall have received an opinion addressed to them of in-house counsel to the Asset Representations Reviewer, dated the 2016-A Closing Date and satisfactory in form and substance to the Representatives and their counsel. (i) The Representatives shall have received a negative assurance letter addressed to them of Sidley Austin LLP, counsel to the Mercedes Parties, dated the 2016-A Closing Date, concerning the Time of Sale Information and the ~~Final Prospectus;~~ Prospectus in form and the Underwriters shall have received, on the Closing Date, a certificate dated the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance substance reasonably satisfactory to the Representatives and their counsel. (j) The Representatives shall have received a negative assurance letter addressed to them of Xxxxx Xxxxx LLP, counsel to the ~~effect set forth~~ Underwriters, dated the 2016-A Closing Date, concerning the Time of Sale Information and the Prospectus in form and substance reasonably satisfactory to the ~~first clause of this Section 9(b)~~Representatives and their counsel. c(k) The ~~Underwriters~~ Representatives shall have received an opinion of ~~the Attorney General of the Province~~Xxxxxxx & Xxxxxx, ~~the Deputy Attorney General of the Province~~LLP, ~~Assistant Deputy Attorney General~~counsel to U.S. Bank National Association, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory relating to general corporate and enforceability matters addressed to the Representatives, ~~as Canadian counsel~~ dated the 2016-A Closing Date and satisfactory in form and substance satisfactory to the ~~Province,~~ Representatives and their counsel. (l) The Representatives shall have received certificates dated the 2016-A Closing ~~Date~~Date of the Chairman of the Board, the President, the Executive Vice President, any Vice President, the Treasurer, any Assistant Treasurer, the Secretary, the principal financial officer or the principal accounting officer of each of the Depositor and MBFS USA, in which such officer shall state that, to the ~~effect that under the laws~~ best of ~~British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type:~~ his/her knowledge after reasonable investigation, (i) ~~The Province has full power~~ the representations and ~~authority to execute~~ warranties of the Depositor and ~~deliver~~ MBFS USA, respectively, contained in this Agreement are true and ~~to issue and sell the Securities. (ii) This Agreement~~ correct and the ~~Fiscal Agency Agreement have been duly authorized~~representations and warranties of the Mercedes Parties, ~~executed and delivered by~~ respectively, contained in the ~~Province and each~~ 2016-A Basic Documents to which it is a ~~valid and legally binding agreement of the Province~~party, ~~except~~ as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to thereinapplicable, are ~~accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information~~ true and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize correct in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated the Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representativeseach Mercedes Party, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion, to the effect that: (i) The Securities are exempted securities under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of the Province in this Agreement are true and correct, that the Province has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements at or prior to the 2016-A Closing Date, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or pursuant to Section 8A of the Securities Act have been instituted or are contemplated by the ~~SEC~~Commission, and (ii) other than as described in such certificate, since the Time of Sale, no material adverse change, or development involving a prospective material adverse change, in or affecting particularly the business or properties of any Mercedes Party, as the case may be, has occurred. (m) The Representatives shall have received evidence satisfactory to it of the filing of all UCC financing statements necessary to perfect (i) ~~The purchase~~ the Collateral Agent’s interest in the Collateral and ~~sale~~ (ii) the transfer of the ~~Securities~~ interest of MBFS USA in ~~accordance with~~ the ~~provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada~~2016-A Exchange Note and the proceeds thereof to the Depositor, the ~~United States~~ transfer of ~~America,~~ the ~~Province or~~ interest of the ~~State~~ Depositor in the 2016-A Exchange Note and the proceeds thereof to the Issuing Entity and the grant of ~~New York~~the security interest by the Issuing Entity in the 2016-A Exchange Note and the proceeds thereof to the Indenture Trustee. j(n) The ~~Province~~ Representatives shall have ~~furnished~~ received, from each of the Depositor and MBFS USA, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of (i) the ~~Underwriters~~ formation documents, (ii) the limited liability company agreement, bylaws or trust agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and ~~to counsel for~~ by the ~~Underwriters~~ 2016-A Basic Documents and (iv) the designation of incumbency of each such ~~further certificates and documents as the Representatives and such counsel reasonably request~~entity. k(o) ~~Subsequent to the execution~~ Each class of ~~this Agreement and prior to the Closing Date, there~~ Notes shall ~~not have occurred any downgrading, nor shall any notice~~ have been ~~given of any intended or potential downgrading or of any placing on credit watch with negative implications,~~ rated by each Hired NRSRO as set forth in the ~~ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency~~ Ratings Free Writing Prospectus, and in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The Province will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. If any of the above conditions each case shall not have been ~~fulfilled as reasonably contemplated herein, this Agreement and all obligations of~~ placed on any credit watch or review with a negative implication for downgrade. (p) On the ~~Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to~~2016-A Closing Date, the ~~Closing Date~~ Certificates shall have been issued by the ~~Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter~~ Issuing Entity and transferred to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this AgreementDepositor.

Appears in 1 contract

Samples: Underwriting Agreement (Mercedes-Benz Auto Lease Trust 2016-A)

Conditions of the Obligations of the Underwriters. The ~~respective~~ several obligations of the ~~several~~ Underwriters to purchase and pay for the ~~Securities~~ Notes will be subject to the accuracy of the representations and warranties ~~on the part of the Province~~ made herein~~, to the accuracy of the statements of the representatives of the Province made pursuant to the provisions hereof~~, to the performance by the ~~Province~~ Depositor and Verizon Wireless of ~~its~~ their obligations ~~hereunder and with regard to the Securities~~ hereunder, and to the following additional conditions precedent: (a) ~~Prior~~ On the Closing Date, each of the Transaction Documents shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully conformed copy of the Notes and Certificates, and the Notes shall have been duly executed and delivered by the Trust and duly authenticated by the Indenture Trustee. The Transaction Documents shall be substantially in the forms heretofore provided to the Representatives. (b) On or before the Closing Date, the Underwriters shall have received the Accountant’s Due Diligence Report and letters, dated as of the date of the Preliminary Prospectus and Prospectus, respectively, of the Accounting Firm, substantially in the form of the drafts to which the Representatives have agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Underwriters and counsel to the Underwriters. (c) The Prospectus and any supplements thereto shall have been filed (if required) with the Commission in accordance with the Rules and Regulations; and, before the Closing Date, no stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Province~~ Depositor or the ~~Representatives~~Underwriters, shall be contemplated by the ~~SEC; and each Issuer Free Writing Prospectus, to~~ Commission or by any authority administering any state securities or blue sky law. (d) Since the ~~extent required by Rule 433 under~~ respective dates as of which information is given in the ~~Securities Act, shall have been filed with the SEC under the Securities Act;~~ Preliminary Prospectus and the ~~Final~~ Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this Agreement. b) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have ~~occurred~~ been (i) any material adverse change in the ~~financial~~business, ~~economic~~ business prospects, properties, financial condition, or ~~political condition~~ results of operations of Verizon Wireless and its subsidiaries, including the ~~Province from that~~ Depositor and the Trust, taken as a whole, or (ii) any development involving a prospective material adverse change in or affecting the Receivables or the servicing or origination business of Verizon Wireless, in each case other than as set forth or contemplated in the ~~Registration Statement, the Time of Sale Information~~ Preliminary Prospectus and the ~~Final~~ Prospectus; and the Underwriters shall have received, on the Closing Date, a certificate dated the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth in the first clause of this Section 9(b). c(e) The Underwriters shall have received an opinion or opinions of in-house counsel to the ~~Attorney General~~ Depositor and Verizon Wireless, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (f) The Underwriters shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the ~~Province~~Depositor, Verizon Wireless and the ~~Deputy Attorney General of the Province~~Trust, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory addressed to the Representatives, ~~as Canadian~~ dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the ~~Province~~Underwriters, addressing (i) corporate, enforceability and securities law matters, (ii) the enforceability of the Notes, (iii) certain true sale and nonconsolidation bankruptcy matters, (iv) bankruptcy proceedings of Verizon Wireless with respect to preference matters, (v) bankruptcy proceedings of Verizon Wireless and the impact of Annual Upgrade Offers, (vi) certain security interest matters and (vii) certain United States federal income tax matters. (g) The Underwriters shall have received one or more negative assurance letters of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Trust, the Depositor and Verizon Wireless, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (h) The Underwriters shall have received an opinion or opinions, addressed to the Underwriters, of Xxxxxxxx, Xxxxxx & Xxxxxx, P.A., counsel to the Indenture Trustee, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (i) The Underwriters shall have received an opinion or opinions, addressed to the Underwriters, of Xxxxxx Xxxxx LLP, counsel to the Owner Trustee, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (j) The Underwriters shall have received an opinion or opinions, addressed to the Underwriters, of Xxxxxx Xxxxx XXX, special Delaware counsel for the Trust, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (k) The Underwriters shall have received an opinion or opinions, addressed to the Underwriters, of Xxxxxx Xxxxx XXX, special Delaware counsel to the Depositor, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (l) The Underwriters shall have received an opinion or opinions, addressed to the Underwriters, of Xxxxxx Xxxxx XXX, special Delaware counsel to the Master Trust, dated as of the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (m) The Underwriters shall have received an opinion or opinions, addressed to the Underwriters, of Bass, Xxxxx & Xxxx PLC, counsel to the Asset Representations Reviewer, dated the Closing Date, and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (n) The Underwriters shall have received one or more negative assurance letters of Xxxxx Xxxxx LLP, counsel for the Underwriters, addressed to the Underwriters. (o) The Underwriters shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Underwriters, dated the Closing Date, to the effect that ~~under~~ the ~~laws~~ Representatives and the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securitiesits date. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. dp) The Underwriters shall have received ~~an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada,~~ certificates dated the Closing ~~Date, as to the matters specified in subdivisions (i) through (vii)~~ Date of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) any one of the ~~Minister of Finance of the Province~~President, Chief Financial Officer, any Vice President, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriateController, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion, to the effect that: (i) The Securities are exempted securities under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of the Province in this Agreement are true and correct, that the Province has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the SEC. i) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province shall have furnished to the Underwriters and to counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. k) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The Province will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.Treasurer or

Appears in 1 contract

Samples: Underwriting Agreement (Verizon Owner Trust 2019-A)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of ~~the several Underwriters to purchase and pay for the Securities will be~~ each Underwriter hereunder are subject to the ~~accuracy~~ following conditions: (a) All filings required by Rule 424 and Rule 430A of the ~~representations~~ Rules and ~~warranties~~ Regulations shall have been made. If the Company has elected to rely upon Rule 462(b), the registration statement filed under Rule 462(b) shall have become effective by 10:00 p.m., Washington, D.C. time, on the ~~part~~ date of the Province herein, to the accuracy of the statements of the representatives of the Province made pursuant to the provisions hereof, to the performance by the Province of its obligations hereunder and with regard to the Securities and to the following additional conditions precedent:this Agreement. a(i) ~~Prior to the Closing Date, no~~ No stop order suspending the effectiveness of the Registration ~~Statement~~Statement or preventing or suspending the use of any preliminary prospectus, ~~as amended from time to time,~~ the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall ~~have been instituted or~~be pending or threatened by the Commission, to (ii) no order suspending the ~~knowledge~~ effectiveness of the ~~Province~~ Registration Statement or the ~~Representatives,~~ qualification or registration of the Shares under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by the ~~SEC; and each Issuer Free Writing Prospectus~~Commission or the authorities of any such jurisdiction, to (iii) any request for additional information on the ~~extent required by Rule 433 under~~ part of the ~~Securities Act,~~ staff of the Commission or any such authorities shall have been ~~filed~~ complied with to the ~~SEC under~~ satisfaction of the ~~Securities Act; and~~ staff of the ~~Final~~ Commission or such authorities, (iv) after the date hereof no amendment or supplement to the Registration Statement, the Prospectus or the Pricing Prospectus shall have been filed ~~with~~ unless a copy thereof was first submitted to the ~~SEC pursuant~~ Representatives and the Representatives do not object thereto in good faith, and (v) the Representatives shall have received certificates, dated the Closing Date and, if later, the Option Closing Date and signed by the Chief Executive Officer and the Chief Financial Officer of the Company (who may, as to ~~Rule 424 not later than 5:00 p.m. New York City time~~proceedings threatened, on rely upon the ~~second business day following~~ best of their information and belief), to the ~~date~~ effect of clauses (i), (ii) and (iii) of this ~~Agreement~~paragraph. b(c) ~~Subsequent to~~ Since the ~~execution~~ respective dates as of ~~this Agreement~~ which information is given in the Registration Statement and ~~prior to~~ the ~~Closing Date~~Pricing Prospectus, (i) there shall not have ~~occurred any~~ been a material adverse change in the ~~financial~~general affairs, ~~economic~~ business, business prospects, properties, management, condition (financial or ~~political condition~~ otherwise) or results of operations of the ~~Province~~ Company or any of its Subsidiaries, whether or not arising from transactions in the ordinary course of business, in each case other than as described in or contemplated by the Registration Statement and the Pricing Prospectus, and (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not described in the Registration Statement and the Pricing Prospectus, if in the judgment of the Representatives any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price. (d) Since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there shall have been no litigation or other proceeding instituted against the Company, any of its Subsidiaries, or any of its or their officers or directors in their capacities as such, before or by any federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceeding an unfavorable ruling, decision or finding would, in the judgment of the Representatives, have a Material Adverse Effect or if, in the judgment of the Representatives, any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price. (e) Each of the representations and warranties of the Company contained herein shall be true and correct in all respects (in the case of any representation and warranty containing a materiality or Material Adverse Effect qualification) or in all material respects at the Closing Date and, with respect to the Option Shares, at the Option Closing Date, and all covenants and agreements contained herein to be performed on the part of the Company and all conditions contained herein to be fulfilled or complied with by the Company at or prior to the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with. (f) The Representatives shall have received an opinion (including a negative assurance statement), dated the Closing Date and, with respect to the Option Shares, the Option Closing Date, satisfactory in form and substance to the Representatives and counsel for the Underwriters from Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, counsel to the Company. (g) The Representatives shall have received an opinion and negative assurance letter, dated the Closing Date and the Option Closing Date, from Fenwick & West, counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion and negative assurance letter shall be satisfactory in form and substance to the Representatives. (h) Concurrently with the execution and delivery of this Agreement, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, addressed to the Representatives and in form and substance satisfactory to the Representatives and PricewaterhouseCoopers LLP, confirming that ~~set forth~~ they are an independent registered public accounting firm with respect to the Company and its Subsidiaries as required by the Act and the Exchange Act and the Rules and Regulations and with respect to certain financial and other statistical and numerical information contained or incorporated by reference in the Registration Statement, the ~~Time of Sale Information~~ Prospectus and the ~~Final Prospectus; and~~ General Disclosure Package. At the ~~Underwriters~~ Closing Date and, as to the Option Shares, the Option Closing Date, the Accountants shall have ~~received~~furnished to the Representatives a letter, dated the date of its delivery, which shall confirm, on the ~~Closing Date,~~ basis of a ~~certificate dated~~ review in accordance with the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect procedures set forth in the ~~first clause of this Section 9(b). c) The Underwriters shall have received an opinion of~~ letter from the ~~Attorney General of~~ Accountants, that nothing has come to their attention during the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Province, dated the Closing Date, to the effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on period from the date of ~~issue of~~ the ~~Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law~~ letter referred to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the ~~Supreme Court of British Columbia and no applicable law requires~~ prior sentence to a date (specified in the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available letter) not more than three days prior to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings Closing Date or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated the Option Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, ~~Canadian counsel~~ which would require any change in their letter dated the date hereof if it were required to be dated and delivered at the Closing Date or the Option Closing Date, as the case may be. (i) At the Closing Date and, as to the ~~Province~~Option Shares, is the Option Closing Date, there shall be furnished to the Representatives a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to ~~them and they believe that~~ the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinionRepresentatives, to the effect that: (i) ~~The Securities are exempted securities~~ Each signer of such certificate has carefully examined the Registration Statement, the Prospectus and the General Disclosure Package (including any documents filed under the ~~Trust Indenture~~ Exchange Act ~~of 1939, as amended (~~and deemed to be incorporated by reference into the ~~“Trust Indenture Act”),~~ Pricing Prospectus and ~~no qualification of an indenture in respect of~~ the ~~Securities under the Trust Indenture Act is required for the issuance, sale~~ Prospectus) and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) ~~the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment),~~ as of the date of ~~this Agreement~~such certificate, ~~contained an untrue statement of a~~ such documents are true and correct in all material ~~fact or omitted~~ respects and do not omit to state a material fact required to be stated therein or necessary in order to make the statements therein not ~~misleading;~~ untrue or misleading and (B) in the ~~Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as~~ case of the ~~Time~~ certificate delivered at the Closing Date and the Option Closing Date, since the Effective Date no event has occurred as a result of ~~Sale, contained an untrue statement of a material fact~~ which it is necessary to amend or ~~omitted to state a material fact necessary~~ supplement the Prospectus in order to make the statements ~~therein, in the light of the circumstances under which they were made,~~ therein not untrue or misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f(ii) ~~The Underwriters shall have received an opinion~~ Each of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of the ~~Province~~ Company contained in this Agreement ~~are~~ were, when originally made, and are, at the time such certificate is delivered, true and correct~~, that~~ . (iii) Each of the ~~Province has complied with all agreements and satisfied all conditions on its part~~ covenants required to be performed by the Company herein on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be satisfied at or fulfilled on or prior to the date of such certificate has been duly, timely and fully satisfied or fulfilled. (j) On or prior to the Closing Date, ~~that no~~ the Representatives shall have received the executed agreements referred to in Section 4(n). (k) The Shares shall be qualified for sale in such jurisdictions as the Representatives may reasonably request and each such qualification shall be in effect and not subject to any stop order ~~suspending~~ or other proceeding on the ~~effectiveness of~~ Closing Date or the ~~Registration Statement has been issued and no proceedings for that purpose~~ Option Closing Date. (l) Prior to the Closing Date, the Shares shall have been ~~instituted or are contemplated by~~ duly authorized for listing on the ~~SEC~~NCM upon official notice of issuance. i(m) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province Company shall have furnished to the ~~Underwriters and~~ Representatives such certificates, in addition to ~~counsel for the Underwriters such further certificates and documents~~ those specifically mentioned herein, as the Representatives ~~and such counsel~~ may have reasonably ~~request. k) Subsequent~~ requested as to the ~~execution of this Agreement~~ accuracy and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The Province will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or completeness at ~~any time prior to,~~ the Closing Date and the Option Closing Date of any statement in the Registration Statement, the Prospectus or the General Disclosure Package, as to the accuracy at the Closing Date and the Option Closing Date of the representations and warranties of the Company herein, as to the performance by the ~~Representatives on behalf~~ Company of its obligations hereunder, or as to the fulfillment of the ~~Underwriters, without any liability on the part of any Underwriter~~ conditions concurrent and precedent to the ~~Province or~~ obligations hereunder of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this AgreementRepresentatives.

Appears in 1 contract

Samples: Underwriting Agreement (Ikanos Communications)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the several Underwriters to purchase and pay for the Offered Securities will be subject to the accuracy of the representations and warranties on the part of the ~~Province~~ Company herein, to the accuracy of the statements of ~~the representatives~~ officers of the ~~Province~~ Company made pursuant to the provisions hereof, to the performance by the ~~Province~~ Company of its obligations hereunder ~~and with regard to the Securities~~ and to the following additional conditions precedent: (a) ~~Prior~~ The Prospectus as amended or supplemented in relation to the ~~Closing Date~~applicable Offered Securities shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing (without reliance on Rule 424(b)(8)) by the Rules and Regulations and in accordance with Section 5(a) hereof; if the Company has elected to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date hereof; no stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement or any part thereof shall have been issued and no ~~proceedings~~ proceeding for that purpose shall have been ~~instituted or,~~ initiated or to the knowledge of the ~~Province or the Representatives, shall be contemplated~~ Company threatened by the ~~SEC~~Commission; and ~~each Issuer Free Writing Prospectus~~all requests for additional information on the part of the Commission shall have been complied with. (i) On the date hereof, Deloitte & Touche LLP shall have furnished to the ~~extent required by Rule 433 under~~ Underwriters a letter, dated as of the date hereof, in form and substance satisfactory to the Underwriters, confirming that they are an independent registered public accounting firm with respect to the Company and its subsidiaries within the meaning of the Securities Act, ~~shall have been filed~~ the Exchange Act and the applicable published Rules and Regulations and stating that as of the Applicable Time (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Preliminary Prospectus as of a particular time not more than five business days prior to the Applicable Time) conclusions and findings of such firm, to the effect that: (A) in their opinion the financial statements examined by them and incorporated by reference in the Preliminary Prospectus comply as to form in all material respects with the ~~SEC under~~ applicable accounting requirements of the Securities Act; , the Exchange Act and the ~~Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time,~~ related published Rules and Regulations; (B) on the ~~second~~ basis of a reading of the latest available interim financial statements of the Company, inquiries of officials of the Company who have responsibility for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that: (1) at the date of the latest available balance sheet read by such accountants, or at a subsequent specified date not more than one business day ~~following~~ prior to the date of this Agreement~~. b) Subsequent to the execution of this Agreement and prior to the Closing Date~~, there ~~shall not have occurred~~ was any ~~material adverse~~ change in the ~~financial, economic~~ capital stock or ~~political condition~~ any increase in short-term indebtedness or long-term debt of the ~~Province from that set forth~~ Company and its consolidated subsidiaries or, at the date of the latest available balance sheet read by such accountants, there was any decrease in total shareholders’ equity or total consolidated net current assets, as compared with amounts shown on the latest balance sheet incorporated by reference in the ~~Registration Statement~~Preliminary Prospectus; (2) for the period from the closing date of the latest statement of income incorporated by reference in the Preliminary Prospectus to the closing date of the latest statement of income read by such accountants, there were any decreases, as compared with the ~~Time~~ corresponding period of ~~Sale Information~~ the previous year, in consolidated revenue or net income; (3) at January 31, 2014, there was any change in the capital stock, any increases in short-term indebtedness or long-term debt, or any decreases in net current assets or total shareholder’s equity, of the Company and its consolidated subsidiaries, in each case as compared with amounts shown on the ~~Final~~ latest balance sheet incorporated by reference in the Preliminary Prospectus; or (4) for the period from January 1, 2014 to January 31, 2014, there were any decreases, as compared with the corresponding period in the preceding year, in consolidated revenue or net income; and (C) they have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the ~~Underwriters shall have received~~Preliminary Prospectus (in each case to the extent that such dollar amounts, on percentages and other financial information are derived from the ~~Closing Date~~general accounting records of the Company and its subsidiaries subject to the internal controls of the Company’s accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a ~~certificate dated the Closing Date~~ reading of such general accounting records and ~~signed by the Minister of Finance of the Province~~other procedures specified in such letter and have found such dollar amounts, ~~the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory~~ percentages and other financial information to ~~the Representatives to the effect set forth~~ be in ~~the first clause of this Section 9(b)~~agreement with such results, except as otherwise specified in such letter. c(ii) The Underwriters shall have received ~~an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province,~~ a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Provinceletter, dated the Closing Date, of Deloitte & Touche LLP which meets the requirements of subsection (b)(i) of this Section, except that (A) the specified date referred to in such subsection will be a date not more than one business day prior to the ~~effect that under~~ Closing Date for the ~~laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion~~ purposes of this ~~type:~~subsection, and (B) references to the Preliminary Prospectus will be replaced with references to the Prospectus. (c) Subsequent to the Applicable Time, there shall not have been (i) ~~The Province~~ any change, or any development or event involving a prospective change, in the financial condition, business, properties or results of operations of the Company and its subsidiaries taken as a whole, which, in the judgment of the Representatives, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Securities; (ii) any downgrading in the rating of any debt securities or preferred stock of the Company by any “nationally recognized statistical rating organization” (as such term is defined in Section 3 of the Exchange Act), or any public announcement that any such organization has ~~full power~~ under surveillance or review its rating of any debt securities or preferred stock of the Company (other than an announcement with positive implications of a possible upgrading, and ~~authority~~ no implication of a possible downgrading, of such rating); (iii) any material 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; (iv) any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (v) any banking moratorium declared by U.S. Federal or New York authorities; (vi) any material disruption in settlements of securities or clearance services in the United States; or (vii) any attack on, or outbreak or escalation of hostilities or act of terrorism involving, the United States, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of the Representatives, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to ~~execute~~ proceed with completion of the offering or sale of and ~~deliver this Agreement and to issue and sell~~ payment for the Offered Securities. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an ~~opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada~~opinion, dated the Closing Date, ~~as to the matters specified in subdivisions (i) through (vii)~~ of ~~paragraph (c) of this Section 9~~Xxxxxxx X. Xxx, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) Assistant General Counsel of the ~~Minister~~ Company, substantially in the form of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereonExhibit A hereto. (e) The Underwriters shall have received ~~the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province~~an opinion, dated the Closing Date, ~~subject to such qualifications and based upon such assumptions as are customary in the United States in respect~~ of ~~such opinion~~Xxxxxxx Coie LLP, special counsel to the ~~effect that: (i) The Securities are exempted securities under~~ Company, in substantially the ~~Trust Indenture Act~~ form of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the SecuritiesExhibit B hereto. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received ~~an opinion of Linklaters~~ from Xxxxxx & Xxxxxxx LLP, ~~United Kingdom~~ counsel for the ~~Province~~Underwriters, such opinion or opinions, dated the Closing Date, ~~subject~~ in form and substance satisfactory to the Underwriters, and the Company shall have furnished to such ~~qualifications and based~~ counsel such documents as they request for the purpose of enabling them to pass upon such ~~assumptions~~ matters. In rendering such opinion or opinions, Xxxxxx & Xxxxxxx LLP may rely as ~~are customary in the United Kingdom in respect of such opinion,~~ to the ~~effect that~~ incorporation of the ~~statements in~~ Company and all other matters governed by Oregon law upon the ~~Time~~ opinion of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters Xxxxxxx Coie LLP referred to ~~therein, fairly summarize in all material respects the legal matters referred to therein~~above. (g) The Underwriters shall have received ~~an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters~~a certificate, dated the Closing Date, ~~as to the matters specified in subdivisions (i), and (iv) (but only as~~ of the ~~date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications~~ President or any Vice President and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a ~~certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province~~ principal financial or ~~another~~ accounting officer of the ~~Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date,~~ Company in which such ~~Minister, Deputy Minister or other officer, as the case may be~~officers, to the best of ~~his or her~~ their knowledge after reasonable investigation, shall state ~~that~~ that: (i) the representations and warranties of the ~~Province~~ Company in this Agreement are true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect; (ii) that the ~~Province~~ Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and (iii) that, ~~that no stop order suspending~~ subsequent to the ~~effectiveness~~ date of the ~~Registration Statement~~ most recent financial statements in, or incorporated by reference in, the Preliminary Prospectus, there has been ~~issued and~~ no proceedings for that purpose have been instituted or are contemplated by the SEC. i) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province shall have furnished to the Underwriters and to counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. k) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any downgradingmaterial adverse change, nor ~~shall~~ any ~~notice have been given of any intended~~ development or ~~potential downgrading or of any placing on credit watch with negative implications~~event involving a prospective material adverse change, in the ~~ratings accorded the debt securities~~ financial condition, business or results of operations of the ~~Province by any nationally recognized statistical rating agency~~ Company and its subsidiaries taken as a whole except as set forth in the ~~United States. All~~ Disclosure Package and the Prospectus or as described in such ~~opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives~~certificate. The ~~Province~~ Company will (i) furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the ~~Representatives~~ Underwriters reasonably request. If The Underwriters may waive compliance with any ~~of the above~~ conditions ~~shall not have been fulfilled as reasonably contemplated herein, this Agreement and all~~ to their obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreementhereunder.

Appears in 1 contract

Samples: Underwriting Agreement (Pacificorp /Or/)

Conditions of the Obligations of the Underwriters. ~~The respective~~ In addition to the execution and delivery of the Price Determination Agreement, the obligations of ~~the several Underwriters to purchase and pay for the Securities will be~~ each Underwriter hereunder are subject to the ~~accuracy~~ following conditions: (a) Notification that the Registration Statement and all post-effective amendments thereto have become effective shall be received by UBS Warburg not later than 5:00 p.m., New York City time, on the date of this Agreement or at such later date and time as shall be consented to in writing by UBS Warburg and all filings required by Rule 424 of the ~~representations~~ Rules and warranties on the part of the Province herein, to the accuracy of the statements of the representatives of the Province made pursuant to the provisions hereof, to the performance by the Province of its obligations hereunder Regulations and ~~with regard to the Securities and to the following additional conditions precedent:~~Rule 430A shall have been made. a(i) ~~Prior to the Closing Date, no~~ No stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement shall have been issued and no proceedings for that purpose shall ~~have been instituted or~~be pending or threatened by the Commission, to (ii) no order suspending the ~~knowledge~~ effectiveness of the ~~Province~~ Registration Statement or the ~~Representatives,~~ qualification or registration of the Units under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by the ~~SEC; and each Issuer Free Writing Prospectus~~Commission or the authorities of any such jurisdiction, to (iii) any request for additional information on the ~~extent required by Rule 433 under~~ part of the ~~Securities Act,~~ staff of the Commission or any such authorities shall have been ~~filed~~ complied with to the ~~SEC under~~ satisfaction of the ~~Securities Act;~~ staff of the Commission or such authorities and (iv) after the ~~Final~~ date hereof no amendment or supplement to the Registration Statement or the Prospectus shall have been filed unless a copy thereof was first submitted to UBS Warburg and UBS Warburg did not object thereto in good faith, and UBS Warburg shall have received certificates, dated the Closing Date and the Option Closing Date and signed by the Chief Executive Officer and Chief Financial Officer of the General Partner (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii). (c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there shall not have been, and no development shall have occurred which could reasonably be expected to result in, a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Star Entities, taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) none of the Star Entities shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the ~~SEC pursuant~~ Registration Statement and the Prospectus, if in the judgment of UBS Warburg any such development makes it impracticable or inadvisable to ~~Rule 424 not later than 5:00 p.m. New York City time~~consummate the sale and delivery of the Units by the Underwriters at the public offering price. (d) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against any of the Star Entities or any of their respective officers or directors in their capacities as such, before or by any federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceeding an unfavorable ruling, decision or finding would materially and adversely affect the business, properties, business prospects, condition (financial or otherwise) or results of operations of the Star Entities taken as a whole. (e) Each of the representations and warranties of the Star Parties contained herein shall be true and correct in all material respects (except for those representations and warranties which are already qualified by materiality, in which case such representations and warranties shall be true and correct in all respects) at the Closing Date and, with respect to the Option Units, at the Option Closing Date, as if made at the Closing Date and, with respect to the Option Units, at the Option Closing Date, and all covenants and agreements herein contained to be performed on the part of the Star Parties and all conditions herein contained to be fulfilled or complied with by the Star Parties at or prior to the Closing Date and, with respect to the Option Units, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with. (f) The Representatives shall have received an opinion, dated the Closing Date and, with respect to the Option Units, the Option Closing Date, satisfactory in form and substance to counsel for the Underwriters, from Xxxxxxxx Xxxxx LLP, counsel to the Partnership, to the effect set forth in Exhibit C. (g) The Representatives shall have received an opinion, dated the Closing Date and, with respect to the Option Units, the Option Closing Date, from Xxxxxx & Xxxxxx L.L.P., counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be satisfactory in all respects to the Representatives. (h) On the date of the Prospectus, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, addressed to the Representatives and in form and substance satisfactory to the Representatives, confirming that they are independent accountants with respect to the Partnership as required by the Act and the Rules and Regulations and with respect to the financial and other statistical and numerical information contained in the Registration Statement or incorporated by reference therein. At the Closing Date and, as to the Option Units, the Option Closing Date, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, which shall confirm, on the ~~second business day following~~ basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of ~~this Agreement~~the letter referred to in the prior sentence to a date (specified in the letter) not more than five days prior to the Closing Date and the Option Closing Date which would require any change in their letter dated the date of the Prospectus, if it were required to be dated and delivered at the Closing Date and the Option Closing Date. b(i) ~~Subsequent to the execution of this Agreement and~~ On or prior to the Closing Date, ~~there shall not have occurred any material adverse change in~~ the ~~financial, economic or political condition of the Province from that set forth in the Registration Statement, the Time of Sale Information and the Final Prospectus; and the Underwriters~~ Representatives shall have ~~received, on~~ received the ~~Closing Date, a certificate dated~~ executed agreements referred to in Section 4(n). (j) At the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth in the first clause of this Section 9(b). c) The Underwriters shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Province, dated the Closing Date, to the effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated the Closing Dateand, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the ProvinceOption Units, the ~~Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory~~ Option Closing Date, there shall be furnished to the Representatives ~~as to factual matters. The opinion shall state in effect that on~~ an accurate certificate, dated the ~~basis~~ date of ~~an independent examination of such records~~its delivery, ~~certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion~~ signed by each of the ~~Attorney General,~~ Chief Executive Officer and the ~~Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General~~ Chief Financial Officer of the ~~Province~~General Partner, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to ~~them and they believe that~~ the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinionRepresentatives, to the effect that: (i) ~~The Securities are exempted securities~~ Each signer of such certificate has carefully examined the Registration Statement and the Prospectus (including any documents filed under the ~~Trust Indenture~~ Exchange Act ~~of 1939, as amended (~~and deemed to be incorporated by reference into the ~~“Trust Indenture Act”),~~ Prospectus) and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) ~~the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment),~~ as of the date of ~~this Agreement~~such certificate, ~~contained an untrue statement of a~~ such documents are true and correct in all material ~~fact or omitted~~ respects and do not omit to state a material fact required to be stated therein or necessary in order to make the statements therein not ~~misleading;~~ untrue or misleading and (B) since the ~~Time~~ Effective Date, no event has occurred as a result of ~~Sale Information (other than~~ which it is necessary to amend or supplement the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, contained an untrue statement of a material fact or omitted to state a material fact necessary Prospectus in order to make the statements ~~therein,~~ therein not untrue or misleading in any material respect and there has been no document required to be filed under the ~~light of~~ Exchange Act and the ~~circumstances under which they were made, not misleading; or (C)~~ Exchange Act Rules and Regulations that upon such filing would be deemed to be incorporated by reference into the ~~Final~~ Prospectus ~~(other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel~~ that has not been ~~requested to comment), as~~ so filed; (ii) Each of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of the ~~Province~~ Star Parties contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respects (except for those representations and warranties which are already qualified by materiality, in which case such representations and warranties are true and ~~correct, that~~ correct in all respects); (iii) Each of the ~~Province has complied with all agreements and satisfied all conditions on its part~~ covenants required herein to be performed ~~or satisfied at~~ by the Star Parties on or prior to the delivery of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Star Parties on or prior to the date of such certificate has been duly, timely and fully complied with; and (iv) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) there has not been, and no development has occurred which could reasonably be expected to result in, a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Star Entities taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (B) none of the Star Entities have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court, legislative, administrative, regulatory or other governmental action, investigation, order or decree, which is not set forth in the Registration Statement and the Prospectus; and such other matters as the Representatives may reasonably request. (k) The Units shall be qualified for sale in such states as the Representatives may reasonably request, each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date and the Option Closing Date. (l) Prior to the Closing Date and the Option Closing Date, ~~that no stop order suspending~~ the ~~effectiveness of~~ Firm Units and the ~~Registration Statement has been issued and no proceedings for that purpose~~ Option Units, respectively shall have been ~~instituted or are contemplated by the SEC~~duly authorized for listing on NYSE upon official notice of issuance. i(m) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province Partnership shall have furnished to the ~~Underwriters and~~ Representatives such certificates, in addition to ~~counsel for the Underwriters such further certificates and documents~~ those specifically mentioned herein, as the Representatives ~~and such counsel~~ may have reasonably ~~request. k) Subsequent~~ requested as to the ~~execution of this Agreement~~ accuracy and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The Province will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or completeness at ~~any time prior to,~~ the Closing Date and the Option Closing Date of any statement in the Registration Statement or the Prospectus or any documents filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus, as to the accuracy at the Closing Date and the Option Closing Date of the representations and warranties of the Star Parties herein, as to the performance by the ~~Representatives on behalf~~ Star Parties of their obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.

Appears in 1 contract

Samples: Underwriting Agreement (Star Gas Partners Lp)

Conditions of the Obligations of the Underwriters. The ~~respective~~ Underwriters' obligations ~~of the several Underwriters to purchase and pay for the Securities will be~~ hereunder are subject to the ~~accuracy~~ following conditions: (a) All filings required by Rule 424 and Rule 430A of the ~~representations~~ Rules and ~~warranties on the part of the Province herein,~~ Regulations to ~~the accuracy of the statements of the representatives of the Province~~ be made ~~pursuant to the provisions hereof, to the performance~~ by the ~~Province of its obligations hereunder and with regard to the Securities and to the following additional conditions precedent: a) Prior~~ Company prior to the Closing ~~Date, no~~ shall have been made by the Company. (i) No stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement shall have been issued and no proceedings for that purpose shall ~~have been instituted or, to~~ be pending or threatened by the ~~knowledge~~ Commission, (ii) no order suspending the effectiveness of the ~~Province~~ Registration Statement or the ~~Representatives,~~ qualification or registration of the Shares under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by the ~~SEC; and each Issuer Free Writing Prospectus~~Commission or the authorities of any such jurisdiction, to (iii) any request for additional information on the ~~extent required by Rule 433 under~~ part of the ~~Securities Act,~~ staff of the Commission or any such authorities shall have been ~~filed~~ complied with to the ~~SEC under~~ satisfaction of the ~~Securities Act;~~ staff of the Commission or such authorities, and (iv) after the ~~Final~~ date hereof no amendment or supplement to the Registration Statement or the Prospectus shall have been filed unless a copy thereof was first submitted to the Representatives and the Representatives did not object thereto in good faith. (c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus, (ii) there shall not have been any change on a consolidated basis, in the equity capitalization, short-term debt or long-term debt of the Company, or any adverse change in the rating assigned to any securities of the Company, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus, and (iii) neither the Company nor any of its subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the ~~SEC pursuant~~ Registration Statement and the Prospectus, if in the judgment of the Representatives any such development makes it impracticable or inadvisable to ~~Rule 424 not later than 5:00 p.m. New York City time,~~ offer or deliver the Shares on the ~~second business day following~~ terms and in the ~~date of this Agreement~~manner contemplated in the Prospectus. b(d) ~~Subsequent~~ Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its subsidiaries or any of their respective officers or directors in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceeding an unfavorable ruling, decision or finding would materially and adversely affect the business, properties, business prospects, condition (financial or otherwise) or results of operations of the Company and its subsidiaries taken as a whole. (e) Each of the representations and warranties of the Company contained herein shall be true and correct in all material respects at the Closing Date, as if made at the Closing Date, and all covenants and agreements contained herein to be performed on the ~~execution~~ part of ~~this Agreement~~ the Company and all conditions contained herein to be fulfilled or complied with by the Company at or prior to the Closing Date, there shall not have occurred any material adverse change in the financial, economic or political condition of the Province from that set forth in the Registration Statement, the Time of Sale Information and the Final Prospectus; and the Underwriters shall have ~~received~~been duly performed, on fulfilled or complied with. (f) The Representatives shall have received the opinion of Goodxxx, Xxocter & Hoar XXX, counsel to the Company, dated the Closing Date, a certificate dated the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth in ~~the first clause of this Section 9(b).~~EXHIBIT A. c(g) The ~~Underwriters~~ Representatives shall have received an the opinion of ~~the Attorney General of the Province~~Goodxxx, ~~the Deputy Attorney General of the Province~~Xxocter & Hoar XXX, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian tax counsel to the ~~Province~~Company, dated the Closing Date, to the effect that, subject to the assumptions and qualifications historically included by such counsel in opinions rendered in recent public offerings by the Company and subject to changes in applicable laws and regulations and judicial and regulatory developments, commencing with the taxable year ending December 31, 1994, the form of organization of the Company and its operations are such as to enable the Company to qualify as a "real estate investment trust" under the applicable provisions of the Code. (h) The Representatives shall have received the statement of Cox, Xxstle & Nichxxxxx XXX, counsel for the Company, dated the Closing Date, to the effect that ~~under~~ to the ~~laws~~ best of ~~British Columbia~~ their knowledge statements relating to the Current Communities, the Development Communities and ~~Canada~~ the Redevelopment Communities (as defined in the Prospectus) and ~~subject to~~ tax-exempt bond financing in the Prospectus (but excluding the statistical and financial data, physical condition and construction status of such ~~qualifications~~ communities included therein) which involved transactions in which they represented the Company are materially fair and ~~based on such assumptions as are customary in British Columbia in respect of an opinion of this type:~~accurate. (i) The ~~Province has full power~~ Representatives shall have received the statement of Goulston & Storrs, P.C., special counsel to the Company, dated the Closing Date, to the effect that to the best of their knowledge certain statements regarding the Company's real estate operations in the Prospectus are materially fair and ~~authority to execute and deliver this Agreement and to issue and sell the Securities~~accurate. (iij) ~~This Agreement~~ The Representatives shall have received an opinion, dated the Closing Date, from O'Melveny & Myerx XXX, counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be satisfactory in all respects to the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable lawRepresentatives. (~~iii~~k) ~~The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance~~ Concurrently with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this ~~Agreement and the Fiscal Agency~~ Agreement, the ~~issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder~~ Accountants shall have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available furnished to the ~~Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not~~ Representatives a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canadaletter, dated the ~~Closing Date~~date of its delivery, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory addressed to the Representatives ~~as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates~~ and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to ~~them~~ the Representatives, confirming that they are independent accountants with respect to the Company as required by the Act and ~~they believe that~~ the ~~Representatives are justified~~ 1933 Act Rules and Regulations and with respect to the financial and other statistical and numerical information contained in ~~relying thereon. e) The Underwriters shall have received~~ the ~~opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated~~ Registration Statement or incorporated by reference therein. At the Closing Date, ~~subject~~ the Accountants shall have furnished to ~~such qualifications and based upon such assumptions as are customary~~ the Representatives a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the ~~United States~~ letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in ~~respect~~ the prior sentence to a date (specified in the letter) not more than five days prior to the Closing Date which would require any change in their letter dated the date hereof if it were required to be dated and delivered at the Closing Date. (l) On the Closing Date there shall have been furnished to the Representatives an accurate certificate, dated the date of ~~such opinion~~its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to the Representatives, to the effect that: (i) ~~The Securities are exempted securities under~~ No stop order suspending the ~~Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect~~ effectiveness of the ~~Securities under~~ Registration Statement has been issued and, to the ~~Trust Indenture Act~~ best of such officers' information and belief, no proceeding for that purpose is ~~required for~~ pending or threatened by the ~~issuance, sale and delivery of the Securities.~~Commission; (ii) ~~The statements~~ No order suspending the effectiveness of the Registration Statement or the qualification or registration of the Shares under the securities or Blue Sky laws of any jurisdiction is in effect and, to the ~~Time~~ best of ~~Sale Information~~ such officers' information and ~~Final Prospectus under “Description~~ belief, no proceeding for such purpose is pending before or threatened or contemplated by the Commission or the authorities of ~~Bonds” and “Description of Debt Securities and Warrants”, insofar as~~ any such ~~statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein.~~jurisdiction; (iii) ~~The statements in~~ Any request for additional information on the ~~Time~~ part of ~~Sale Information, and Final Prospectus under “Description~~ the staff of ~~Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”,~~ the Commission or any such authorities has been complied with to the ~~extent that they constitute summaries~~ satisfaction of ~~legal matters referred to therein, fairly summarize in all material respects~~ the ~~legal matters referred to therein.~~staff of the Commission or such authorities; (iv) ~~Based upon~~ Each signer of such ~~counsel’s participation in conferences with representatives of~~ certificate has carefully examined the ~~Province, counsel for~~ Registration Statement and the ~~Province~~ Prospectus (including any documents filed under the Exchange Act and ~~their examination of specified documents, no facts have come~~ deemed to ~~such counsel’s attention which caused such counsel to believe that~~ be incorporated by reference into the Prospectus) and (A) ~~the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment),~~ as of the date of ~~this Agreement~~such certificate, ~~contained an untrue statement of a~~ such documents, taken together, are true and correct in all material ~~fact or omitted~~ respects and do not omit to state a material fact required to be stated therein or necessary in order to make the statements therein not ~~misleading;~~ untrue or misleading and (B) no event has occurred as a result of which it is necessary to amend or supplement the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, contained an untrue statement of a material fact or omitted to state a material fact necessary Prospectus in order to make the statements ~~therein,~~ therein not untrue or misleading in any material respect and there has been no document required to be filed under the ~~light of~~ Exchange Act and the ~~circumstances under which they were made, not misleading; or (C)~~ Exchange Act Rules and Regulations that upon such filing would be deemed to be incorporated by reference into the ~~Final~~ Prospectus ~~(other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel~~ that has not been ~~requested to comment), as~~ so filed; (v) Each of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of the ~~Province~~ Company contained in this Agreement ~~are~~ were, when originally made, and are, at the time such certificate is delivered, true and ~~correct, that~~ correct in all material respects; (vi) Each of the ~~Province has complied with all agreements and satisfied all conditions on its part~~ covenants required to be performed ~~or satisfied at~~ by the Company herein on or prior to the delivery of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the date of such certificate has been duly, timely and fully complied with; and (m) The Shares shall be qualified for sale in the jurisdictions designated pursuant to Section 5(g), each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date. (n) The Company shall have applied to have the Shares approved for listing on the New York Stock Exchange and the Pacific Exchange, ~~that no stop order suspending the effectiveness of the Registration Statement has been issued~~ and ~~no proceedings for that purpose~~ such applications shall not have been ~~instituted or are contemplated by the SEC~~disapproved. i(o) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province Company shall have furnished to the ~~Underwriters and~~ Representatives such certificates, in addition to ~~counsel for the Underwriters such further certificates and documents~~ those specifically mentioned herein, as the Representatives may have reasonably requested as to the accuracy and ~~such counsel reasonably request~~completeness at the Closing Date of any statement in the Registration Statement or the Prospectus or any documents filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus, as to the accuracy at the Closing Date of the representations and warranties of the Company herein, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations of the Underwriters hereunder. k(p) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the ~~Representatives~~Representatives and their counsel. The ~~Province~~ Company will furnish the ~~Underwriters~~ Representatives with such conformed copies of such opinions, certificates, letters and other documents as the Representatives shall reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.

Appears in 1 contract

Samples: Underwriting Agreement (Avalonbay Communities Inc)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the several Underwriters to purchase and pay for the Securities will be subject to the accuracy of the representations and warranties on the part of the ~~Province herein~~Company herein on and as of the Time of Sale and on and as of the Closing Date as if made on the Closing Date, to the accuracy of the statements of ~~the representatives of the Province~~ Company officers made pursuant to the provisions hereof, to the performance by the ~~Province~~ Company of its obligations hereunder ~~and with regard to the Securities~~ and to the following additional conditions precedent: (a) ~~Prior~~ The Representatives shall have received a letter, dated as of the date of this Agreement, of PricewaterhouseCoopers LLP, in form and substance satisfactory to the ~~Closing Date~~Representatives, no containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements of the Company and its subsidiaries included or incorporated by reference in the Registration Statement. (b) The Prospectus and each Issuer Free Writing Prospectus (if required by Rule 433 under the Act) shall have been filed with the Commission in accordance with the Rules and Regulations and Section 4(a) of this Agreement. No stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement or of any parts thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Act shall have been instituted or, to the knowledge of the ~~Province~~ Company or ~~the Representatives~~any Underwriter, shall be contemplated by the SEC; and each Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act, shall have been filed with the SEC under the Securities Act; and the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this AgreementCommission. b(c) Subsequent to the earlier of (A) the Time of Sale and (B) the execution of this ~~Agreement and prior to the Closing Date~~Agreement, there shall not have occurred (i) any ~~material adverse change~~ change, or any development or event involving a prospective change, in or affecting particularly the business or properties of the Company, or its subsidiaries which, in the ~~financial, economic or political condition~~ judgment of the ~~Province~~ Representatives, materially impairs the investment quality of the Securities; (ii) any downgrading in the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange 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); (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or the setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Company on such 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 that, in the reasonable judgment of the Representatives, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Securities. (d) The Representatives shall have received an opinion or opinions, dated the Closing Date, of K&L Gates LLP, Pennsylvania counsel for the Company, in form and substance reasonably satisfactory to the Representatives. (e) The Representatives shall have received an opinion and 10b-5 statement, each dated the Closing Date, of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, special counsel for the Company, in form and substance reasonably satisfactory to the Representatives. (f) The Representatives shall have received from ~~that set forth in~~ Cravath, Swaine & Xxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 statement, each dated the Closing Date, with respect to the incorporation of the Company, the validity of the Securities, the Registration Statement, the Time of Sale ~~Information~~ Information, the Prospectus and other related matters as they may require, and the ~~Final Prospectus; and the Underwriters~~ Company shall have ~~received~~furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. In rendering such opinion, on Cravath, Swaine & Xxxxx LLP may rely as to matters governed by Pennsylvania law, upon the Closing Date, a certificate dated the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory opinions referred to ~~the Representatives to the effect set forth~~ in ~~the first clause~~ subsection (d) of this ~~Section 9(b)~~Section. c(g) The ~~Underwriters~~ Representatives shall have received ~~an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province,~~ a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Provincecertificate, dated the Closing Date, to the effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations Chairman of the ~~Province in accordance with their respective terms~~ Board, President or any Vice-President and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official a principal financial or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated the Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another accounting officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion, to the effect that: (i) The Securities are exempted securities under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, Company in which such ~~Minister, Deputy Minister or other officer, as the case may be~~officers, to the best of ~~his or her~~ their knowledge after reasonable investigation, shall state that the representations and warranties of the ~~Province~~ Company in this Agreement are true and correct, that the ~~Province~~ Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, that no stop order suspending the effectiveness of the Registration Statement or of any parts thereof has been issued and no proceedings for that purpose or pursuant to Section 8A of the Act have been instituted or are contemplated by the ~~SEC~~Commission and that, 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 the Company and its subsidiaries considered in the aggregate, except as set forth in or contemplated by the Time of Sale Information and the Prospectus. i(h) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province Representatives shall have ~~furnished to~~ received a certificate, dated the ~~Underwriters~~ date hereof and ~~to counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. k) Subsequent to the execution of this Agreement and prior to~~ the Closing Date, ~~there shall not have occurred any downgrading, nor shall any notice have been given~~ of ~~any intended or potential downgrading or~~ the chief financial officer of ~~any placing on credit watch~~ the Company with ~~negative implications~~respect to certain financial data contained in the Time of Sale Information and the Prospectus, in ~~the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters~~ form and ~~documents will be in compliance with the provisions hereof only if they are~~ substance reasonably satisfactory to the Representatives. (i) The Representatives shall have received a letter, dated the Closing Date, of PricewaterhouseCoopers LLP, in form and substance satisfactory to the Underwriters, which reconfirms the matters set forth in their letter delivered pursuant to subsection (a) of this Section and covers any additional financial information included in the Prospectus (which is not covered by their letter delivered pursuant to subsection (a) of this Section). (j) The Securities shall be eligible for clearance and settlement through DTC. The ~~Province~~ Company will furnish the ~~Underwriters~~ Representatives with such conformed copies of such opinions, certificates, letters and documents ~~as the Representatives~~ they reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.

Appears in 1 contract

Samples: Underwriting Agreement (Howmet Aerospace Inc.)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the ~~several~~ Underwriters to purchase and pay for the ~~Securities will~~ Common Stock shall be subject to the accuracy of the representations and warranties on the part of the Province herein, to the accuracy of the statements of the representatives of the Province made pursuant to the provisions hereof, to the performance by the Province of its obligations hereunder and with regard to the Securities and to the following additional ~~conditions precedent~~conditions: (a) ~~Prior to~~ At the ~~Closing Date,~~ time of closing no stop order suspending the effectiveness of the Registration Statement, as amended from time to time, shall ~~have been issued~~ be in effect and no proceedings for that purpose shall be pending before or threatened by the Commission, and the Representatives shall have ~~been instituted or~~received a certificate dated the day of closing and signed by a Vice President of the Company to the effect that no such stop order is in effect and, to the knowledge of the ~~Province~~ Company, no proceedings for such purpose are pending before, or threatened by, the Representatives, shall be contemplated by the SEC; and each Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act, shall have been filed with the SEC under the Securities Act; and the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this AgreementCommission. (b) ~~Subsequent to the execution of this Agreement and~~ At or prior to the ~~Closing Date, there shall not have occurred any material adverse change in the financial, economic or political condition~~ time of ~~the Province from that set forth in the Registration Statement~~closing, the Time of Sale Information and the Final Prospectus; and the Underwriters shall have received, on the Closing Date, a certificate dated the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives ~~to the effect set forth in the first clause of this Section 9(b). c) The Underwriters~~ shall have received from Wachtell, Lipton, Rosex & Xatz ("XLRK"), counsel for the Company, an ~~opinion of the Attorney General of the Province~~opinion, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to ~~the Representatives~~Davix Xxxx & Xardxxxx, ~~as Canadian counsel to the Province, dated the Closing Date, to~~ xx the effect ~~that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type~~that: (i) ~~The Province has full power~~ the Company is a corporation in good standing, duly organized and ~~authority~~ validly existing under the laws of the State of Delaware; and is authorized by its Certificate of Incorporation to ~~execute and deliver this Agreement and to issue and sell~~ transact the ~~Securities.~~business in which it is engaged, as set forth in the Prospectus; (ii) ~~This~~ the Company is duly qualified to transact the business in which it is engaged, as set forth in the Prospectus, in each State in the United States in which it operates; (iii) the shares of Common Stock delivered at the time of closing have been duly and validly authorized and issued, are fully paid and non-assessable and, solely with respect to the general corporation laws of the State of Delaware and the Certificate of Incorporation, free of preemptive rights; (iv) each of this Agreement and the ~~Fiscal Agency~~ Rights Agreement ~~have~~ has been duly authorized, executed and delivered by on behalf of the ~~Province~~ Company and ~~each~~ is a valid and ~~legally~~ binding ~~agreement of~~ on the ~~Province~~Company, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect.; (v) ~~Proceedings may be brought against~~ the ~~Province~~ Common Stock conforms in all material respects to the description thereof contained in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada.Prospectus; (vi) ~~The statements in~~ all consents, approvals, authorizations or other orders of U.S. regulatory authorities legally required for the ~~Time of Sale Information~~ issuance and ~~Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary~~ sale of the ~~documents referred to therein, are accurate in all material respects, subject~~ Common Stock to the ~~qualifications therein stated.~~Underwriters pursuant to the terms of this Agreement, have been obtained, except such as may be required by the securities or Blue Sky laws of the various States in connection with the offer and sale of the Common Stock; and (vii) ~~The~~ except as to financial statements ~~in the Time of Sale Information~~ and ~~Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities~~ schedules and ~~Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to~~ other financial and statistical information contained therein, ~~fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an~~ which such opinion ~~of Oxxxx~~need not pass upon, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated the Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion, to the effect that: (i) The Securities are exempted securities under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement when it became effective complied as to form in all material respects with the requirements of the Act and the applicable instructions, rules and regulations of the Commission thereunder; (~~other than~~ B) the ~~financial statements~~ Registration Statement and ~~other financial data contained therein~~ the Prospectus, as amended or ~~omitted therefrom~~supplemented, if applicable, comply, and at the date thereof complied, as to form in all material respects with the requirements of the Act and the applicable instructions, rules and regulations of the Commission thereunder; and (C) advising that nothing came to such counsel's attention which would lead such counsel ~~has not been requested~~ to ~~comment), as~~ believe (x) any part of the ~~date of this Agreement,~~ Registration Statement at the time it became effective contained an any untrue statement of a material fact or omitted to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; and (By) ~~the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment),~~ as of the ~~Time of Sale~~closing date, ~~contained an~~ 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 the light of the circumstances under which they were made, not misleading; . At WLRK's option, the opinion specified in clause (ii) above may be delivered by Gregxxx X. Xxxxxx, Xxnior Vice President and General Counsel of the Company, in lieu of WLRK. (c) At or prior to the time of closing, the Representatives shall have received from Davix Xxxx & Xardxxxx xx opinion to the effect specified in clauses (i), (iii), (iv) and (vii)(A), (B) and (C) of subparagraph (b) above. (d) At the ~~Final Prospectus~~ date hereof and at or prior to the time of closing, the Representatives shall have received an executed copy of a letter of PricewaterhouseCoopers LLP, addressed to the Company and to the Representatives and the QIU (~~other than~~ as defined below), to the effect that: (i) they are independent public accountants as required by the Act and the applicable published rules and regulations of the Commission thereunder; (ii) the audited financial statements contained in the Registration Statement comply as to form in all material respects with the applicable accounting requirements of the Act and ~~other~~ the applicable published rules and regulations of the Commission thereunder; (iii) the unaudited pro forma financial ~~data~~ statements contained ~~therein~~ in the Registration Statement comply as to form in all material respects with the applicable accounting requirements of Rule 11-02 of Regulation S-X promulgated by the Commission; and (iv) nothing has come to their attention as the result of specified procedures not constituting an audit that caused them to believe (A) that there was any change in the capital stock or ~~omitted therefrom~~increase in long term debt of the Company, or any decrease in net assets, from the date of the latest balance sheet which is contained in the Registration Statement, to a date not more than five days prior to the date of such letter or (B) that there were any decreases, as compared with the corresponding period in the preceding year, in total revenues, operating income or net income from the date of the latest figures for such items contained in the Registration Statement to ~~which such counsel has not been requested~~ the date of the latest available financial statements of the Company; provided that, with respect to ~~comment~~any of the items specified in clause (iv), such letter may contain an exception for matters which the Registration Statement discloses have occurred or may occur; and provided further, that the letter may vary from the requirements specified in this subparagraph in such manner as the Representatives in their sole discretion may determine to be immaterial or in such manner as may be acceptable to the Representatives. (e) At the time of ~~its date or~~ closing, the ~~Closing Date, contained or contains~~ Representatives shall have received an ~~untrue statement~~ executed copy of a ~~material fact or omitted or omits~~ letter of Arthxx Xxxexxxx XXX, addressed to ~~state a material fact necessary in order~~ the Company and to ~~make~~ the Representatives and the QIU, to the effect that: (i) they are independent public accountants as required by the Act and the applicable published rules and regulations of the Commission thereunder and (ii) the audited financial statements ~~therein,~~ contained in the ~~light~~ Registration Statement, insofar as they relate to Vanguard Cellular Systems, Inc. and its subsidiaries, comply as to form in all material respects with the applicable accounting requirements of the ~~circumstances under which they were made, not misleading, and,~~ Act and the applicable published rules and regulations of the Commission thereunder. (f) Except as reflected in ~~such counsel’s opinion,~~ or contemplated by the Registration Statement and the ~~Final~~ Prospectus, since the respective dates as of which information is given in the Registration Statement and the Prospectus ~~(other than~~ there shall not have been, at the time of closing, any material adverse change, financial ~~statements and other financial data contained therein~~ or ~~omitted therefrom~~otherwise, ~~as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive~~ in ~~all material respects to~~ the ~~requirements~~ condition of the ~~Securities Act~~ Company from that set forth in the Registration Statement and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that Prospectus; the representations and warranties of the ~~Province in this Agreement are~~ Company herein shall be true ~~and correct~~at the time of closing; the Company shall not have failed, ~~that the Province has complied with all agreements and satisfied all conditions on its part to be performed or satisfied~~ at or prior to the ~~Closing Date~~time of closing, ~~that no stop order suspending~~ to have performed all agreements herein contained which should have been performed by it at or prior to such time; and the ~~effectiveness~~ Representatives shall have received, at the time of closing, a certificate to the foregoing effect dated the day of the ~~Registration Statement has been issued~~ closing and ~~no proceedings for that purpose have been instituted or are contemplated~~ signed by a Vice President of the ~~SEC~~Company. i(g) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New ~~York. j) The Province~~ York Stock Exchange shall have ~~furnished~~ approved the Common Stock for listing, subject only to ~~the Underwriters and to counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. k) Subsequent to the execution~~ official notice of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United Statesissuance. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The Province will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. If In case any of the conditions specified above ~~conditions~~ in this Section 9 shall not have been ~~fulfilled as reasonably contemplated herein~~fulfilled, this Agreement ~~and all obligations of the Underwriters hereunder~~ may be terminated ~~with respect to Securities at, or at any time prior to, the Closing Date~~ by the Representatives ~~on behalf~~ by delivering written notice of termination to the ~~Underwriters,~~ Selling Stockholders and the Company. Any such termination shall be without ~~any~~ liability ~~on the part~~ of any ~~Underwriter~~ party to any other party except to the ~~Province or of the Province to any Underwriter, except as~~ extent provided in subparagraphs (d), (e) and (f) of Section ~~6, Section 10 and Section 13~~ 8 hereof~~. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement~~.

Appears in 1 contract

Samples: Underwriting Agreement (At&t Wireless Services Inc)

Conditions of the Obligations of the Underwriters. ~~The respective~~ In addition to the execution and delivery of the Price Determination Agreement, the obligations of ~~the several Underwriters to purchase and pay for the Securities will be~~ each Underwriter hereunder are subject to the ~~accuracy~~ following conditions: (a) Notification that the Registration Statement and all post-effective amendments thereto have become effective shall be received by the Representatives not later than 5:00 p.m., New York City time, on the date of this Agreement or at such later date and time as shall be consented to in writing by the Representatives and all filings required by Rule 424 of the ~~representations~~ Rules and warranties on the part of the Province herein, to the accuracy of the statements of the representatives of the Province made pursuant to the provisions hereof, to the performance by the Province of its obligations hereunder Regulations and ~~with regard to the Securities and to the following additional conditions precedent:~~Rule 430A shall have been made. a(i) ~~Prior to the Closing Date, no~~ No stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement shall have been issued and no proceedings for that purpose shall ~~have been instituted or~~be pending or threatened by the Commission, to (ii) no order suspending the ~~knowledge~~ effectiveness of the ~~Province~~ Registration Statement or the ~~Representatives,~~ qualification or registration of the Units under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by the ~~SEC; and each Issuer Free Writing Prospectus~~Commission or the authorities of any such jurisdiction, to (iii) any request for additional information on the ~~extent required by Rule 433 under~~ part of the ~~Securities Act,~~ staff of the Commission or any such authorities shall have been ~~filed~~ complied with to the ~~SEC under~~ satisfaction of the ~~Securities Act;~~ staff of the Commission or such authorities and (iv) after the ~~Final~~ date hereof no amendment or supplement to the Registration Statement or the Prospectus shall have been filed unless a copy thereof was first submitted to the Representatives and the Representatives did not object thereto in good faith, and the Representatives shall have received certificates, dated the Closing Date and the Option Closing Date and signed by the Chief Executive Officer and Chief Financial Officer of the General Partner (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii). (c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there shall not have been, and no development shall have occurred which could reasonably be expected to result in, a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Star Entities, taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) none of the Star Entities shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the ~~SEC pursuant~~ Registration Statement and the Prospectus, if in the judgment of the Representatives any such development makes it impracticable or inadvisable to ~~Rule 424 not later than 5:00 p.m. New York City time~~consummate the sale and delivery of the Units by the Underwriters at the public offering price. (d) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against any of the Star Entities or any of their respective officers or directors in their capacities as such, before or by any federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceeding an unfavorable ruling, decision or finding would materially and adversely affect the business, properties, business prospects, condition (financial or otherwise) or results of operations of the Star Entities taken as a whole. (e) Each of the representations and warranties of the Star Parties contained herein shall be true and correct in all material respects (except for those representations and warranties which are already qualified by materiality, in which case such representations and warranties shall be true and correct in all respects) at the Closing Date and, with respect to the Option Units, at the Option Closing Date, as if made at the Closing Date and, with respect to the Option Units, at the Option Closing Date, and all covenants and agreements herein contained to be performed on the part of the Star Parties and all conditions herein contained to be fulfilled or complied with by the Star Parties at or prior to the Closing Date and, with respect to the Option Units, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with. (f) The Representatives shall have received an opinion, dated the Closing Date and, with respect to the Option Units, the Option Closing Date, satisfactory in form and substance to counsel for the Underwriters, from Xxxxxxxx Xxxxx LLP, counsel to the Partnership, to the effect set forth in Exhibit C. (g) The Representatives shall have received an opinion, dated the Closing Date and, with respect to the Option Units, the Option Closing Date, from Xxxxxx & Xxxxxx L.L.P., counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be satisfactory in all respects to the Representatives. (h) On the date of the Prospectus, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, addressed to the Representatives and in form and substance satisfactory to the Representatives, confirming that they are independent accountants with respect to the Partnership as required by the Act and the Rules and Regulations and with respect to the financial and other statistical and numerical information contained in the Registration Statement or incorporated by reference therein. At the Closing Date and, as to the Option Units, the Option Closing Date, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, which shall confirm, on the ~~second business day following~~ basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of ~~this Agreement~~the letter referred to in the prior sentence to a date (specified in the letter) not more than five days prior to the Closing Date and the Option Closing Date which would require any change in their letter dated the date of the Prospectus, if it were required to be dated and delivered at the Closing Date and the Option Closing Date. b(i) ~~Subsequent to the execution of this Agreement and~~ On or prior to the Closing Date, ~~there shall not have occurred any material adverse change in~~ the ~~financial, economic or political condition of the Province from that set forth in the Registration Statement, the Time of Sale Information and the Final Prospectus; and the Underwriters~~ Representatives shall have ~~received, on~~ received the ~~Closing Date, a certificate dated~~ executed agreements referred to in Section 4(n). (j) At the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth in the first clause of this Section 9(b). c) The Underwriters shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Province, dated the Closing Date, to the effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated the Closing Dateand, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the ProvinceOption Units, the ~~Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory~~ Option Closing Date, there shall be furnished to the Representatives ~~as to factual matters. The opinion shall state in effect that on~~ an accurate certificate, dated the ~~basis~~ date of ~~an independent examination of such records~~its delivery, ~~certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion~~ signed by each of the ~~Attorney General,~~ Chief Executive Officer and the ~~Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General~~ Chief Financial Officer of the ~~Province~~General Partner, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to ~~them and they believe that~~ the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinionRepresentatives, to the effect that: (i) ~~The Securities are exempted securities~~ Each signer of such certificate has carefully examined the Registration Statement and the Prospectus (including any documents filed under the ~~Trust Indenture~~ Exchange Act ~~of 1939, as amended (~~and deemed to be incorporated by reference into the ~~“Trust Indenture Act”),~~ Prospectus) and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) ~~the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment),~~ as of the date of ~~this Agreement~~such certificate, ~~contained an untrue statement of a~~ such documents are true and correct in all material ~~fact or omitted~~ respects and do not omit to state a material fact required to be stated therein or necessary in order to make the statements therein not ~~misleading;~~ untrue or misleading and (B) since the ~~Time~~ Effective Date, no event has occurred as a result of ~~Sale Information (other than~~ which it is necessary to amend or supplement the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, contained an untrue statement of a material fact or omitted to state a material fact necessary Prospectus in order to make the statements ~~therein,~~ therein not untrue or misleading in any material respect and there has been no document required to be filed under the ~~light of~~ Exchange Act and the ~~circumstances under which they were made, not misleading; or (C)~~ Exchange Act Rules and Regulations that upon such filing would be deemed to be incorporated by reference into the ~~Final~~ Prospectus ~~(other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel~~ that has not been ~~requested to comment), as~~ so filed; (ii) Each of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of the ~~Province~~ Star Parties contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respects (except for those representations and warranties which are already qualified by materiality, in which case such representations and warranties are true and ~~correct, that~~ correct in all respects); (iii) Each of the ~~Province has complied with all agreements and satisfied all conditions on its part~~ covenants required herein to be performed ~~or satisfied at~~ by the Star Parties on or prior to the delivery of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Star Parties on or prior to the date of such certificate has been duly, timely and fully complied with; and (iv) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) there has not been, and no development has occurred which could reasonably be expected to result in, a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Star Entities taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (B) none of the Star Entities have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court, legislative, administrative, regulatory or other governmental action, investigation, order or decree, which is not set forth in the Registration Statement and the Prospectus; and such other matters as the Representatives may reasonably request. (k) The Units shall be qualified for sale in such states as the Representatives may reasonably request, each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date and the Option Closing Date. (l) Prior to the Closing Date and the Option Closing Date, ~~that no stop order suspending~~ the ~~effectiveness of~~ Firm Units and the ~~Registration Statement has been issued and no proceedings for that purpose~~ Option Units, respectively shall have been ~~instituted or are contemplated by the SEC~~duly authorized for listing on NYSE upon official notice of issuance. i(m) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province Partnership shall have furnished to the ~~Underwriters and~~ Representatives such certificates, in addition to ~~counsel for the Underwriters such further certificates and documents~~ those specifically mentioned herein, as the Representatives ~~and such counsel~~ may have reasonably ~~request. k) Subsequent~~ requested as to the ~~execution of this Agreement~~ accuracy and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The Province will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or completeness at ~~any time prior to,~~ the Closing Date and the Option Closing Date of any statement in the Registration Statement or the Prospectus or any documents filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus, as to the accuracy at the Closing Date and the Option Closing Date of the representations and warranties of the Star Parties herein, as to the performance by the ~~Representatives on behalf~~ Star Parties of their obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.

Appears in 1 contract

Samples: Underwriting Agreement (Star Gas Partners Lp)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of ~~the several Underwriters to purchase and pay for the Securities will be~~ each Underwriter hereunder are subject to the ~~accuracy~~ following conditions: (a) Notification that the Registration Statement has become effective shall be received by the Representative not later than 5:00 p.m., California time, on the date of this Agreement or at such later date and time as shall be consented to in writing by the Representative and all filings required by Rule 424 and Rule 430A of the ~~representations~~ Rules and warranties on the part of the Province herein, to the accuracy of the statements of the representatives of the Province made pursuant to the provisions hereof, to the performance by the Province of its obligations hereunder and with regard to the Securities and to the following additional conditions precedent:Regulations shall have been made. a(i) ~~Prior to the Closing Date, no~~ No stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement shall have been issued and no proceedings for that purpose shall ~~have been instituted or~~be pending or threatened by the Commission, to (ii) no order suspending the ~~knowledge~~ effectiveness of the ~~Province~~ Registration Statement or the ~~Representatives,~~ qualification or registration of the Shares under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by the ~~SEC; and each Issuer Free Writing Prospectus~~Commission or the authorities of any such jurisdiction, to (iii) any request for additional information on the ~~extent required by Rule 433 under~~ part of the ~~Securities Act,~~ staff of the Commission or any such authorities shall have been ~~filed~~ complied with to the ~~SEC under~~ satisfaction of the ~~Securities Act;~~ staff of the Commission or such authorities and (iv) after the ~~Final~~ date hereof no amendment or supplement to the Registration Statement or the Prospectus shall have been filed ~~with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this Agreement. b) Subsequent~~ unless a copy thereof was first submitted to the ~~execution of this Agreement~~ Representative and ~~prior to~~ the Representative do not object thereto in good faith, and the Representative shall have received certificates, dated the Closing ~~Date~~Date and, ~~there shall not have occurred any material adverse change in the financial, economic or political condition of the Province from that set forth in the Registration Statement~~if later, the ~~Time of Sale Information and the Final Prospectus; and the Underwriters shall have received, on the Closing Date, a certificate dated the~~ Option Closing Date and signed by the ~~Minister of Finance~~ Chief Executive Officer and the Chief Financial Officer of the ~~Province~~Company (who may, as to proceedings threatened, rely upon the ~~Deputy Minister~~ best of ~~Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives~~ their information and belief), to the effect ~~set forth~~ of clauses (i), (ii) and (iii) of this paragraph. (c) Since the respective dates as of which information is given in the ~~first clause~~ Registration Statement and the Prospectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of ~~this Section 9(b)~~operations of the Company, whether or not arising from transactions in the ordinary course of business, in each case other than as described in or contemplated by the Registration Statement and the Prospectus, and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not described in the Registration Statement and the Prospectus, if in the judgment of the Representative any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price. c(d) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers or directors in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceeding an unfavorable ruling, decision or finding would, in the judgment of the Representative, materially and adversely affect the business, properties, business prospects, condition (financial or otherwise) or results of operations of the Company. (e) Each of the representations and warranties of the Company contained herein shall be true and correct in all material respects at the Closing Date and, with respect to the Option Shares, at the Option Closing Date, and all covenants and agreements contained herein to be performed on the part of the Company and all conditions contained herein to be fulfilled or complied with by the Company at or prior to the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with. (f) The ~~Underwriters~~ Representative shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Provinceopinion, dated the Closing Date and, with respect to the Option Shares, the Option Closing Date, satisfactory in form and substance to the ~~effect that under~~ Representative and counsel for the ~~laws of British Columbia and Canada and subject~~ Underwriters from Dorsxx & Xhitxxx XXX, counsel to ~~such qualifications and based on such assumptions as are customary in British Columbia in~~ the Company, with respect ~~of an opinion of this type~~to the following matters: (i) The ~~Province~~ Company is a corporation duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation; has full corporate power and authority to ~~execute and deliver this Agreement~~ conduct all the activities conducted by it, to own or lease all the assets owed or leased by it and to ~~issue~~ conduct its business as described in the Registration Statement and ~~sell~~ Prospectus; and is duly licensed or qualified to do business and is in good standing as a foreign corporation in all jurisdictions in which the ~~Securities~~nature of the activities conducted by it or the character of the assets owned or leased by it makes such license or qualification necessary and where the failure to be licensed or qualified would have a material and adverse effect on the business or financial condition of the Company. (ii) All of the outstanding shares of capital stock of the Company have been duly authorized, validly issued and are fully paid and nonassessable, to such counsel's knowledge, were issued pursuant to exemptions from the registration and qualification requirements of federal and applicable state securities laws, and were not issued in violation of or subject to any preemptive or, to such counsel's knowledge, similar rights; (iii) The specimen certificate evidencing the Common Stock filed as an exhibit to the Registration Statement is in due and proper form under Delaware law, the Shares to be sold by the Company hereunder have been duly authorized and, when issued and paid for as contemplated by this Agreement, will be validly issued, fully paid and nonassessable; and no preemptive or similar rights exist with respect to any of the Shares or the issue and sale thereof. (iv) To such counsel's knowledge, the Company does not own or control, directly or indirectly, any shares of stock or any other equity or long-term debt securities of any corporation or have any equity interest in any corporation, firm, partnership, joint venture, association or other entity. (v) The number of shares of authorized and outstanding capital stock of the Company is as set forth in the Registration Statement and the Prospectus in the column entitled "Actual" under the caption "Capitalization" (except for subsequent issuances, if any, pursuant to this Agreement or pursuant to reservations, agreements, employee benefit plans or the exercise of convertible securities, options or warrants referred to in the Prospectus). To such counsel's knowledge, except as disclosed in or specifically contemplated by the Prospectus, there are no outstanding options, warrants of other rights calling for the issuance of; and no commitments, plans or arrangements to issue, any shares of capital stock of the Company or any security convertible into or exchangeable or exercisable for capital stock of the Company. The description of the capital stock of the Company in the Registration Statement and the Prospectus conforms in all material respects to the terms thereof. (vi) To such counsel's knowledge, there are no legal or governmental proceedings pending or threatened to which the Company is a party or to which any of its properties is subject that are required to be described in the Registration Statement or the Prospectus but are not so described. (vii) No consent, approval, authorization or order of; or any filing or declaration with, any court or governmental agency or body is required for the consummation by the Company of the transactions on its part contemplated under this Agreement, except such as have been obtained or made under the Act or the Rules and Regulations and such as may be required under state securities or Blue Sky laws or the by-laws and rules of the NASD in connection with the purchase and distribution by the Underwriters of the Shares. (viii) The Company has full corporate power and authority to enter into this Agreement. This Agreement ~~and the Fiscal Agency Agreement have~~ has been duly authorized, executed and delivered by the ~~Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law~~Company. (~~iii~~ix) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this ~~Agreement and the Fiscal Agency~~ Agreement, the ~~issuance~~ compliance by the Company with all of the ~~Securities~~ terms hereof and the ~~performance by~~ consummation of the ~~Province~~ transactions contemplated hereby does not contravene any provision of applicable law or the Articles of Incorporation or By-Laws of the Company, and will not result in the creation or imposition of any lien, charge or encumbrance upon any of the assets of the Company pursuant to the terms and provisions of; result in a breach or violation of any of the terms or provisions of; or constitute a default under, or give any party a right to terminate any of its obligations ~~hereunder~~ under, or result in the acceleration of any obligation under, any indenture, mortgage, deed of trust, voting trust agreement, loan agreement, bond, debenture, note agreement or other evidence of indebtedness, lease, contract or other agreement or instrument known to such counsel to which the Company is a party or by which the Company or any of its properties is bound or affected, or violate or conflict with (i) any judgment, ruling, decree or order known to such counsel or (ii) any statute, rule or regulation of any court or other governmental agency or body, applicable to the business or properties of the Company except for such liens, charges, encumbrances, breaches, violations or terminations as would not reasonably be expected to have a material and ~~thereunder have been obtained and are in full force and effect~~adverse effect on business, properties or results of operations of the Company. (vx) ~~Proceedings may~~ To such counsel's knowledge, there is no document or contract of a character required to be ~~brought against the Province~~ described in the ~~Supreme Court of British Columbia and no applicable law requires~~ Registration Statement or the ~~consent of any public official~~ Prospectus or ~~authority for proceedings~~ to be ~~brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available~~ filed as an exhibit to the ~~Province in any proceedings~~ Registration Statement which is not described or filed or incorporated by reference as required, and each description of such contracts and documents that is contained in the ~~Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia)~~ Registration Statement and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly ~~summarize~~ presents in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated the Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion, to the effect that: (i) The Securities are exempted securities information required under the ~~Trust Indenture~~ Act ~~of 1939, as amended (~~and the ~~“Trust Indenture Act”),~~ Rules and ~~no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities~~Regulations. (iixi) The statements under the captions "Risk Factors - Substantial sales of our common stock, or the perception that substantial sales may occur, could cause our stock price to fall and make it difficult for us to sell additional securities," "Management - Employment Agreements," "Management - Stock Option Plans," "Management - Indemnification of Directors and Executive Officers and Limitation of Liability," "Certain Transactions," "Description of Capital Stock" and "Shares Eligible for Future Sale" in the ~~Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”~~Prospectus, insofar as ~~such~~ the statements constitute a summary of documents referred to ~~therein~~therein or matters of law, are accurate summaries and fairly ~~summarize~~ and correctly present, in all material ~~respects~~ respects, the information called for with respect to such documents ~~referred~~ and matters (provided, however, that such counsel may rely on representations of the Company with respect to ~~therein. (iii) The statements~~ the factual matters contained in ~~the Time of Sale Information~~such statements, and ~~Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”,~~ provided further that such counsel shall state that nothing has come to the ~~extent~~ attention of such counsel which leads them to believe that ~~they constitute summaries of legal matters referred to therein, fairly summarize~~ such representations are not true and correct in all material ~~respects the legal matters referred to therein~~respects). (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of the Province in this Agreement are true and correct, that the Province has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the SEC. i) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province shall have furnished to the Underwriters and to counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. k) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The Province will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.

Appears in 1 contract

Samples: Underwriting Agreement (Stockpoint Inc)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the several Underwriters to purchase and pay for the Offered Securities will be subject to the accuracy of the representations and warranties on the part of the ~~Province~~ Company herein, to the accuracy of the statements of ~~the representatives~~ officers of the ~~Province~~ Company made pursuant to the provisions hereof, to the performance by the ~~Province~~ Company of its obligations hereunder ~~and with regard to the Securities~~ and to the following additional conditions precedent: (a) ~~Prior~~ The Prospectus as amended or supplemented in relation to the ~~Closing Date~~applicable Offered Securities shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing (without reliance on Rule 424(b)(8) by the Rules and Regulations and in accordance with Section 5(a) hereof; if the Company has elected to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall have become effective by 10:00 P.M., Washington, D.C. time, on the date hereof; no stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement or any part thereof shall have been issued and no ~~proceedings~~ proceeding for that purpose shall have been ~~instituted or,~~ initiated or to the knowledge of the ~~Province or the Representatives, shall be contemplated~~ Company threatened by the ~~SEC~~Commission; and ~~each Issuer Free Writing Prospectus~~all requests for additional information on the part of the Commission shall have been complied with. (i) On the date hereof, Deloitte & Touche LLP shall have furnished to the ~~extent required by Rule 433 under~~ Underwriters a letter, dated as of the date hereof, in form and substance satisfactory to the Underwriters, confirming that they are an independent registered public accounting firm with respect to the Company and its subsidiaries within the meaning of the Securities Act, ~~shall have been filed~~ the Exchange Act and the applicable published Rules and Regulations and stating that as of the Applicable Time (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Preliminary Prospectus as of a particular time not more than five business days prior to the Applicable Time) conclusions and findings of such firm, to the effect that: (A) in their opinion the financial statements examined by them and incorporated by reference in the Preliminary Prospectus comply as to form in all material respects with the ~~SEC under~~ applicable accounting requirements of the Securities Act; , the Exchange Act and the ~~Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time,~~ related published Rules and Regulations; (B) on the ~~second~~ basis of a reading of the latest available interim financial statements of the Company, inquiries of officials of the Company who have responsibility for financial and accounting matters and other specified procedures, nothing came to their attention that caused them to believe that: (1) at the date of the latest available balance sheet read by such accountants, or at a subsequent specified date not more than one business day ~~following~~ prior to the date of this Agreement~~. b) Subsequent to the execution of this Agreement and prior to the Closing Date~~, there ~~shall not have occurred~~ was any ~~material adverse~~ change in the ~~financial, economic~~ capital stock or ~~political condition~~ any increase in short-term indebtedness or long-term debt of the ~~Province from that set forth~~ Company and its consolidated subsidiaries or, at the date of the latest available balance sheet read by such accountants, there was any decrease in total shareholders’ equity or total consolidated net current assets, as compared with amounts shown on the latest balance sheet incorporated by reference in the ~~Registration Statement~~Preliminary Prospectus; (2) for the period from the closing date of the latest statement of income incorporated by reference in the Preliminary Prospectus to the closing date of the latest statement of income read by such accountants, there were any decreases, as compared with the ~~Time~~ corresponding period of ~~Sale Information~~ the previous year, in consolidated revenue or net income; (3) at [ ], there was any change in the capital stock, any increases in short-term indebtedness or long-term debt, or any decreases in net current assets or total shareholder’s equity, of the Company and its consolidated subsidiaries, in each case as compared with amounts shown on the ~~Final~~ latest balance sheet incorporated by reference in the Preliminary Prospectus; or (4) for the period from [ ] to [ ], there were any decreases, as compared with the corresponding period in the preceding year, in consolidated revenue or net income; and (C) they have compared specified dollar amounts (or percentages derived from such dollar amounts) and other financial information contained in the ~~Underwriters shall have received~~Preliminary Prospectus (in each case to the extent that such dollar amounts, on percentages and other financial information are derived from the ~~Closing Date~~general accounting records of the Company and its subsidiaries subject to the internal controls of the Company’s accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a ~~certificate dated the Closing Date~~ reading of such general accounting records and ~~signed by the Minister of Finance of the Province~~other procedures specified in such letter and have found such dollar amounts, ~~the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory~~ percentages and other financial information to ~~the Representatives to the effect set forth~~ be in ~~the first clause of this Section 9(b)~~agreement with such results, except as otherwise specified in such letter. c(ii) The Underwriters shall have received ~~an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province,~~ a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Provinceletter, dated the Closing Date, of Deloitte & Touche LLP which meets the requirements of subsection (c)(i) of this Section, except that (A) the specified date referred to in such subsection will be a date not more than one business day prior to the ~~effect that under~~ Closing Date for the ~~laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion~~ purposes of this ~~type:~~subsection, and (B) references to the Preliminary Prospectus will be replaced with references to the Prospectus. (c) Subsequent to the Applicable Time, there shall not have been (i) ~~The Province~~ any change, or any development or event involving a prospective change, in the financial condition, business, properties or results of operations of the Company and its subsidiaries taken as a whole, which, in the judgment of the Representatives, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Securities; (ii) any downgrading in the rating of any debt securities or preferred stock of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has ~~full power~~ under surveillance or review its rating of any debt securities or preferred stock of the Company (other than an announcement with positive implications of a possible upgrading, and ~~authority~~ no implication of a possible downgrading, of such rating); (iii) any material 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; (iv) any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (v) any banking moratorium declared by U.S. Federal or New York authorities; (vi) any material disruption in settlements of securities or clearance services in the United States; or (vii) any attack on, or outbreak or escalation of hostilities or act of terrorism involving, the United States, any declaration of war by Congress or any other substantial national or international calamity or emergency if, in the judgment of the Representatives, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to ~~execute~~ proceed with completion of the offering or sale of and ~~deliver this Agreement and to issue and sell~~ payment for the Offered Securities. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an ~~opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada~~opinion, dated the Closing Date, ~~as to the matters specified in subdivisions (i) through (vii)~~ of ~~paragraph (c) of this Section 9~~[ ], subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) General Counsel of the ~~Minister~~ Company, substantially in the form of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereonExhibit A hereto. (e) The Underwriters shall have received ~~the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province~~an opinion, dated the Closing Date, ~~subject to such qualifications and based upon such assumptions as are customary in the United States in respect~~ of ~~such opinion~~Pxxxxxx Coie LLP, special counsel to the ~~effect that: (i) The Securities are exempted securities under~~ Company, in substantially the ~~Trust Indenture Act~~ form of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the SecuritiesExhibit B hereto. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received ~~an opinion of Linklaters~~ from Lxxxxx & Wxxxxxx LLP, ~~United Kingdom~~ counsel for the ~~Province~~Underwriters, such opinion or opinions, dated the Closing Date, ~~subject~~ in form and substance satisfactory to the Underwriters, and the Company shall have furnished to such ~~qualifications and based~~ counsel such documents as they request for the purpose of enabling them to pass upon such ~~assumptions as are customary in the United Kingdom in respect of~~ matters. In rendering such opinion, Lxxxxx & Wxxxxxx LLP may rely as to the ~~effect that~~ incorporation of the ~~statements in~~ Company and all other matters governed by Oregon law upon the ~~Time~~ opinion of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters Pxxxxxx Coie LLP referred to ~~therein, fairly summarize in all material respects the legal matters referred to therein~~above. (g) The Underwriters shall have received ~~an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters~~a certificate, dated the Closing Date, ~~as to the matters specified in subdivisions (i), and (iv) (but only as~~ of the ~~date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications~~ President or any Vice President and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a ~~certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province~~ principal financial or ~~another~~ accounting officer of the ~~Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date,~~ Company in which such ~~Minister, Deputy Minister or other officer, as the case may be~~officers, to the best of ~~his or her~~ their knowledge after reasonable investigation, shall state ~~that~~ that: (i) the representations and warranties of the ~~Province~~ Company in this Agreement are true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect; (ii) that the ~~Province~~ Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and (iii) that, ~~that no stop order suspending~~ subsequent to the ~~effectiveness~~ date of the ~~Registration Statement~~ most recent financial statements in, or incorporated by reference in, the Preliminary Prospectus, there has been ~~issued and~~ no proceedings for that purpose have been instituted or are contemplated by the SEC. i) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province shall have furnished to the Underwriters and to counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. k) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any downgradingmaterial adverse change, nor ~~shall~~ any ~~notice have been given of any intended~~ development or ~~potential downgrading or of any placing on credit watch with negative implications~~event involving a prospective material adverse change, in the ~~ratings accorded the debt securities~~ financial condition, business or results of operations of the ~~Province by any nationally recognized statistical rating agency~~ Company and its subsidiaries taken as a whole except as set forth in the ~~United States. All~~ Disclosure Package and the Prospectus or as described in such ~~opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives~~certificate. The ~~Province~~ Company will (i) furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the ~~Representatives~~ Underwriters reasonably request. If The Underwriters may waive compliance with any ~~of the above~~ conditions ~~shall not have been fulfilled as reasonably contemplated herein, this Agreement and all~~ to their obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreementhereunder.

Appears in 1 contract

Samples: Underwriting Agreement (Pacificorp /Or/)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the ~~several~~ Underwriters to purchase and pay for the ~~Securities~~ Notes will be subject to the accuracy of the representations and warranties on the part of the ~~Province~~ Depositor and MBFS USA herein, to the accuracy of the ~~statements~~ certifications of officers of the ~~representatives of the Province~~ Mercedes Parties made pursuant to the provisions hereof, to the performance by the ~~Province~~ Depositor and MBFS USA of ~~its~~ their obligations hereunder ~~and with regard to the Securities~~ and to the following additional conditions precedent: (a) ~~Prior~~ The Registration Statement shall be effective at the Execution Time, and prior to the 201[__]-[__] Closing Date, no stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the Securities Act shall have been instituted or, to the knowledge of the ~~Province~~ Depositor or the Representatives, shall be contemplated by the ~~SEC;~~ Commission. (b) Each of the Preliminary Prospectus and ~~each Issuer~~ the Prospectus and any supplements thereto shall have been filed (if required) with the Commission in accordance with the Rules and Regulations and Section 6(a) hereof. Each of the Pricing Free Writing Prospectus, to [the ~~extent required by Rule 433 under the Securities Act~~Initial Ratings Free Writing Prospectus], ~~shall have been filed with the SEC under the Securities Act;~~ and the ~~Final~~ Ratings Free Writing Prospectus shall have been filed with the ~~SEC pursuant~~ Commission in accordance with Rule 433 of the Rules and Regulations. (c) On or prior to ~~Rule 424 not later than 5:00 p.m. New York City time, on the second business day following~~ the date of this ~~Agreement~~Agreement and on or prior to the 201[__]-[__] Closing Date, the Representatives shall have received a letter or letters, dated as of the date of this Agreement and as of the 201[__]-[__] Closing Date, respectively, of an independent registered public accounting firm reasonably acceptable to the Representatives, substantially in the form of the drafts to which the Representatives have previously agreed and otherwise in form and substance satisfactory to the Representatives and their counsel. b(d) Subsequent to the execution and delivery of this ~~Agreement and prior to the Closing Date~~Agreement, there shall not have occurred (i) any ~~material adverse change~~ change, or any development involving a prospective change, in or affecting particularly the business or properties of any Mercedes Party which, in the ~~financial, economic or political condition~~ judgment of the ~~Province from that set forth~~ Representatives, materially impairs the investment quality of the Notes or makes it impractical or inadvisable to market the Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum or maximum prices for trading on such exchange, or a material disruption in commercial banking or securities settlement or clearance services in the ~~Registration Statement~~United States or with respect to Clearstream or Euroclear systems in Europe; (iii) any general commercial banking moratorium declared by Federal, Delaware or New York authorities; 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 the Representatives, the effect of any such outbreak, escalation, declaration, calamity or emergency on the U.S. financial markets makes it impractical or inadvisable to proceed with the offering, sale of and payment for the Notes. (e) The Representatives shall have received opinions of Sidley Austin LLP, counsel to the Mercedes Parties and such other counsel acceptable to the Underwriters, relating to general corporate and enforceability, tax, perfection and priority, and true sale/nonconsolidation matters addressed to the Representatives, dated the 201[__]-[__] Closing Date and satisfactory in form and substance to the Representatives and their counsel. Such counsel shall also opine as to such other matters as the Underwriters may reasonably request. (f) The Representatives shall have received opinions of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Mercedes Parties, the Owner Trustee and the Titling Trustee and such other counsel acceptable to the Underwriters, relating to general corporate and enforceability matters addressed to the Representatives, dated the 201[__]-[__] Closing Date and satisfactory in form and substance to the Representatives and their counsel. (g) The Representatives shall have received an opinion addressed to them by Sidley Austin LLP in its capacity as special tax counsel to the Issuing Entity, dated the 201[__]-[__] Closing Date, substantially to the effect that the statements in each of the Preliminary Prospectus and the Prospectus under the headings “Summary of Terms––Tax Status” (to the extent relating to Federal income tax consequences), and “Material Federal Income Tax Consequences” to the extent that they constitute statements of matters of law or legal conclusions with respect thereto, have been prepared or reviewed by such counsel and accurately describe the material income tax consequences to holders of the Notes, and the statements in each of the Preliminary Prospectus and the Prospectus under the heading “Summary of Terms––ERISA Considerations” and “ERISA Considerations,” to the extent that they constitute statements of matters of law or legal conclusions with respect thereto, have been prepared or reviewed by such counsel and accurately describe the material consequences to holders of the Notes under ERISA. (h) The Representatives shall have received a negative assurance letter addressed to them of Sidley Austin LLP, counsel to the Mercedes Parties, dated the Closing Date, concerning the Time of Sale Information and the ~~Final Prospectus;~~ Prospectus in form and the Underwriters shall have received, on the Closing Date, a certificate dated the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance substance reasonably satisfactory to the Representatives and their counsel. (i) The Representatives shall have received a negative assurance letter addressed to them of [___________], counsel to the ~~effect set forth~~ Underwriters, dated the 201[__]-[__] Closing Date, concerning the Time of Sale Information and the Prospectus in form and substance reasonably satisfactory to the ~~first clause of this Section 9(b)~~Representatives and their counsel. c(j) The ~~Underwriters~~ Representatives shall have received an opinion of ~~the Attorney General of the Province~~[_____________], ~~the Deputy Attorney General of the Province~~counsel to [______________________], Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory relating to general corporate and enforceability matters addressed to the Representatives, ~~as Canadian counsel~~ dated the 201[__]-[__] Closing Date and satisfactory in form and substance satisfactory to the ~~Province,~~ Representatives and their counsel. (k) The Representatives shall have received certificates dated the 201[__]-[__] Closing ~~Date~~Date of the Chairman of the Board, the President, the Executive Vice President, any Vice President, the Treasurer, any Assistant Treasurer, the Secretary, the principal financial officer or the principal accounting officer of each of the Depositor and MBFS USA, in which such officer shall state that, to the ~~effect that under the laws~~ best of ~~British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type:~~ his/her knowledge after reasonable investigation, (i) ~~The Province has full power~~ the representations and ~~authority to execute~~ warranties of the Depositor and ~~deliver~~ MBFS USA, respectively, contained in this Agreement are true and ~~to issue and sell the Securities. (ii) This Agreement~~ correct and the ~~Fiscal Agency Agreement have been duly authorized~~representations and warranties of the Mercedes Parties, ~~executed and delivered by~~ respectively, contained in the ~~Province and each~~ 201[__]-[__] Basic Documents to which it is a ~~valid and legally binding agreement of the Province~~party, ~~except~~ as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to thereinapplicable, are ~~accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information~~ true and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize correct in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated the Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representativeseach Mercedes Party, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion, to the effect that: (i) The Securities are exempted securities under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of the Province in this Agreement are true and correct, that the Province has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements at or prior to the 201[__]-[__] Closing Date, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or pursuant to Section 8A of the Securities Act have been instituted or are contemplated by the ~~SEC~~Commission, and (ii) other than as described in such certificate, since the Time of Sale, no material adverse change, or development involving a prospective material adverse change, in or affecting particularly the business or properties of any Mercedes Party, as the case may be, has occurred. (l) The Representatives shall have received evidence satisfactory to it of the filing of all UCC financing statements necessary to perfect (i) ~~The purchase~~ the Collateral Agent’s interest in the Collateral and ~~sale~~ (ii) the transfer of the ~~Securities~~ interest of MBFS USA in ~~accordance with~~ the ~~provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada~~201[__]-[__] Exchange Note and the proceeds thereof to the Depositor, the ~~United States~~ transfer of ~~America,~~ the ~~Province or~~ interest of the ~~State~~ Depositor in the 201[__]-[__] Exchange Note and the proceeds thereof to the Issuing Entity and the grant of ~~New York~~the security interest by the Issuing Entity in the 201[__]-[__] Exchange Note and the proceeds thereof to the Indenture Trustee. j(m) The ~~Province~~ Representatives shall have ~~furnished~~ received, from each of the Depositor and MBFS USA, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of (i) the ~~Underwriters~~ formation documents, (ii) the limited liability company agreement, bylaws or trust agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and ~~to counsel for~~ by the ~~Underwriters~~ 201[__]-[__] Basic Documents and (iv) the designation of incumbency of each such ~~further certificates and documents as the Representatives and such counsel reasonably request~~entity. k(n) ~~Subsequent to the execution~~ Each class of ~~this Agreement and prior to the Closing Date, there~~ Notes shall ~~not have occurred any downgrading, nor shall any notice~~ have been ~~given of any intended or potential downgrading or of any placing on credit watch with negative implications,~~ rated by each Hired NRSRO as set forth in the ~~ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency~~ Ratings Free Writing Prospectus, and in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The Province will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. If any of the above conditions each case shall not have been ~~fulfilled as reasonably contemplated herein, this Agreement and all obligations of~~ placed on any credit watch or review with a negative implication for downgrade. (o) On the ~~Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to~~201[__]-[__] Closing Date, the ~~Closing Date~~ Certificates shall have been issued by the ~~Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter~~ Issuing Entity and transferred to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this AgreementDepositor.

Appears in 1 contract

Samples: Underwriting Agreement (Daimler Trust)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the several Underwriters ~~to purchase and pay for the Securities will~~ hereunder shall be ~~subject~~ subject, in their discretion, to the ~~accuracy of the~~ condition that all representations and warranties ~~on the part of the Province herein, to the accuracy of the~~ and other statements of the ~~representatives~~ Company and Advanta herein are, at and as of the ~~Province made pursuant~~ Time of Delivery, true and correct (except to the ~~provisions hereof~~extent that any representation or warranty relates to a specific date, in which case such representation or warranty shall be deemed to relate only to such date), the ~~performance by~~ condition that the ~~Province~~ Company and Advanta shall have performed all of ~~its~~ their respective obligations hereunder theretofore to be performed, and ~~with regard to the Securities and to~~ the following additional conditions precedent: (a) ~~Prior~~ The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) within the ~~Closing Date,~~ applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 5(a) hereof; no stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement or any part thereof shall have been issued and no ~~proceedings~~ proceeding for that purpose shall have been ~~instituted or, to~~ initiated or threatened by the ~~knowledge~~ Commission; and all requests for additional information on the part of the ~~Province or the Representatives, shall be contemplated by the SEC; and each Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act,~~ Commission shall have been ~~filed~~ complied with to the SEC under the Securities Act; and the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this AgreementRepresentative's satisfaction. (b) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any material adverse change in the financial, economic or political condition of the Province from that set forth in the Registration Statement, the Time of Sale Information and the Final Prospectus; and the Underwriters shall have received, on the Closing Date, a certificate dated the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth in the first clause of this Section 9(b). c) The ~~Underwriters~~ Representative shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Provinceopinion, dated the Closing Date, of Van Cott, Xxxxxx, Cornwall & XxXxxxxx, as special Utah counsel for Advanta, satisfactory in form and substance to the Representative and its counsel to the effect ~~that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type~~that: (i) ~~The Province~~ Advanta (x) has ~~full~~ been duly incorporated and is validly existing as an industrial loan corporation under the laws of the State of Utah, with power and authority to own its properties and conduct its business as described in the Prospectus and (y) has the power, authority and legal right to acquire and own the Designated Accounts and the Receivables, to sell and assign the Receivables to the Company pursuant to the Receivables Purchase Agreement, to service the Designated Accounts and Receivables pursuant to the Transfer and Servicing Agreement and to enter into and perform its obligations under this Agreement and each Transaction Document to which it is a party. (ii) Advanta has, or at the time of execution thereof, had, the power and authority to execute and deliver each of the Transaction Documents to which it is a party, and Advanta had and at all times since the time of execution thereof has had and does now have the power to consummate the transactions contemplated herein and in the Transaction Documents to which it is a party. (iii) Advanta has duly authorized, executed and delivered each Transaction Document to which it is a party. (iv) This Agreement has been duly authorized, executed and delivered by Advanta. (v) No consent, approval, authorization or order of, or filing of any UCC financing statements with, any court or governmental agency or body of the State of Utah having jurisdiction over Advanta is required for the consummation of the transactions contemplated by this Agreement and the Transaction Documents, except for (x) filing of UCC financing statements with respect to ~~issue~~ the transactions contemplated in the Receivables Purchase Agreement and the Transfer and Servicing Agreement and (y) such consents, approvals, authorizations, orders or filings as may be required under the state securities or blue sky laws of any jurisdiction. (vi) The execution, delivery and performance by Advanta of this Agreement, the transfer of the Receivables from Advanta to the Company and, in turn, from the Company to the Issuer, the issuance and sale of the Notes and the consummation of any other of the transactions contemplated herein or in the Transaction Documents will not conflict with, result in a breach of or a violation of any of the terms of, or constitute a default under (x) the Articles of Incorporation and Bylaws of Advanta, (y) any rule, order, statute or regulation known to such counsel to be currently applicable to Advanta or (z) any agreement or other instrument, known to such counsel, to which Advanta is a party or by which it is bound. (vii) To such counsel's knowledge, there are no actions, proceedings or investigations pending before any court, administrative agency or other tribunal (v) asserting the invalidity of this Agreement, any of the Transaction Documents or the Notes, (w) seeking to prevent the issuance of the Notes or the consummation of any of the transactions contemplated by this Agreement or the Transaction Documents, (x) which might materially and adversely affect the performance by Advanta of its obligations under, or the validity or enforceability of, this Agreement or any of the Transaction Documents to which it is a party or (y) seeking adversely to affect the federal income tax attributes of the Notes as described in the Base Prospectus under the heading "Federal Income Tax Consequences." (c) The Representative shall have received an opinion, dated the Closing Date, of Xxxxxxxx and Wedge, as special Nevada counsel for the Company, satisfactory in form and substance to the Representative and its counsel to the effect that: (i) The Company (x) has been duly incorporated and is validly existing as a corporation under the laws of the State of Nevada, with power and authority to own its properties and conduct its business as described in the Prospectus and (y) has the power, authority and legal right to acquire and own the Receivables, to sell and assign the ~~Securities~~Receivables to the Issuer pursuant to the Transfer and Servicing Agreement and to enter into and perform its obligations under this Agreement and each Transaction Document to which it is a party. (ii) The Company has, or at the time of execution thereof, had, the power and authority to execute and deliver each of the Transaction Documents to which it is a party, and the Company had and at all times since the time of execution thereof has had and does now have the power to consummate the transactions contemplated herein and in the Transaction Documents to which it is a party. (iii) The Company has duly authorized, executed and delivered each Transaction Document to which it is a party. (iv) This Agreement ~~and the Fiscal Agency Agreement have~~ has been duly authorized, executed and delivered by the ~~Province~~ Company. (v) No consent, approval, authorization or order of, or filing of any UCC financing statements with, any court or governmental agency or body of the State of Nevada having jurisdiction over the Company is required for the consummation of the transactions contemplated by this Agreement and ~~each~~ the Transaction Documents, except for (x) filing of UCC financing statements with respect to the transactions contemplated in the Receivables Purchase Agreement and the Transfer and Servicing Agreement and (y) such consents, approvals, authorizations, orders or filings as may be required under the state securities or blue sky laws of any jurisdiction. (vi) The execution, delivery and performance by the Company of this Agreement, the transfer of the Receivables from the Company to the Issuer, the issuance and sale of the Notes and the consummation of any other of the transactions contemplated herein or in the Transaction Documents will not conflict with, result in a breach of or a violation of any of the terms of, or constitute a default under (x) the Articles of Incorporation and Bylaws of the Company or (y) any rule, order, statute or regulation known to such counsel to be currently applicable to the Company. (vii) To such counsel's knowledge, there are no actions, proceedings or investigations pending before any court, administrative agency or other tribunal (v) asserting the invalidity of this Agreement, any of the Transaction Documents or the Notes, (w) seeking to prevent the issuance of the Notes or the consummation of any of the transactions contemplated by this Agreement or the Transaction Documents, (x) which might materially and adversely affect the performance by the Company of its obligations under, or the validity or enforceability of, this Agreement or any of the Transaction Documents to which it is a party or (y) seeking adversely to affect the federal income tax attributes of the Notes as described in the Base Prospectus under the heading "Federal Income Tax Consequences." (d) The Representative shall have received an opinion dated the Closing Date, of Wolf, Block, Xxxxxx and Xxxxx-Xxxxx LLP, special counsel to the Company and Advanta, satisfactory in form and substance to the Representative and its counsel, to the effect that: (i) Each of the Transaction Documents to which the Company or Advanta is a party constitutes the legal, valid and ~~legally~~ binding ~~agreement~~ obligation of each of them, as applicable, under the laws of the ~~Province~~State of New York enforceable against the Company and Advanta, ~~except~~ as ~~rights to indemnity~~ applicable, in accordance with its terms. (ii) This Agreement constitutes the legal, valid and ~~contribution hereunder may be limited~~ binding obligation of the Company and Advanta under ~~applicable law~~the laws of the State of New York, enforceable against the Company and Advanta in accordance with its terms. (iii) The ~~Securities~~Notes, when ~~duly executed,~~ executed and authenticated in accordance with the terms of the Indenture and delivered to and paid for by the Underwriters in accordance with ~~the provisions of~~ this ~~Agreement and the Fiscal Agency~~ Agreement, will be duly and validly issued and outstanding, will constitute ~~valid~~legal, ~~legally binding, direct~~ valid and ~~unconditional general~~ binding obligations of the ~~Province~~ Issuer, enforceable against the Issuer in accordance with their ~~respective~~ terms and will ~~rank equally and ratably with all other unsecured and unsubordinated indebtedness~~ be entitled to the benefits of the ~~Province outstanding on the date of issue of the Securities~~Indenture. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the ~~Time of Sale Information and Final~~ Base Prospectus under the ~~caption “Description~~ headings "Prospectus Summary -- Tax Status, " and " -- ERISA Considerations," "Risk Factors -- If a receiver or conservator were appointed for a seller or a transferor that is a bank, or if a seller or a transferor that is not a bank became a debtor in a bankruptcy case, delays or reductions in payment of ~~Bonds”, insofar as such statements constitute a summary~~ your notes could occur," "Material Legal Aspects of the ~~documents referred~~ Receivables," "ERISA Considerations" and "Federal Income Tax Consequences" and the statements in the Prospectus Supplement under the headings "Summary of Terms -- Tax Status" and " -- ERISA Considerations" and "ERISA Considerations," to ~~therein~~the extent they constitute matters of law or legal conclusions with respect thereto, have been reviewed by us and are ~~accurate~~ correct in all material respects~~, subject to the qualifications therein stated~~. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated the Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion, to the effect that: (i) The Securities are exempted securities under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of the Province in this Agreement are true and correct, that the Province has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the SEC. i) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province shall have furnished to the Underwriters and to counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. k) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The Province will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.

Appears in 1 contract

Samples: Underwriting Agreement (Advanta Business Receivables Corp)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the several Underwriters to purchase and pay for the Offered Securities on the Closing Date will be subject to the accuracy of the representations and warranties on the part of the ~~Province~~ Company and the Selling Stockholders herein, to the accuracy of the statements of ~~the representatives of the Province~~ Company officers made pursuant to the provisions hereof, to the performance by the ~~Province~~ Company and the Selling Stockholders of ~~its~~ their obligations hereunder ~~and with regard to the Securities~~ and to the following additional conditions precedent: (a) [Reserved] (b) The Underwriters shall have received a letter, dated the date of delivery thereof (which shall be on or prior to the date of this Agreement), of PricewaterhouseCoopers LLP in form and substance satisfactory to the Underwriters and PricewaterhouseCoopers LLP containing statements and information of the type ordinarily included in the accountants’ “comfort letters” to underwriters with respect to financial statements and certain financial information contained or incorporated by reference in the Registration Statement, each Issuer Free Writing Prospectus (other than any Issuer Free Writing Prospectus that is an “electronic road show” as defined in Rule 433(h)) and the General Disclosure Package. (c) The Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 5(a) of this Agreement. Prior to the Closing Date, no stop order suspending the effectiveness of ~~the~~ a Registration ~~Statement, as amended from time to time,~~ Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of any Selling Stockholder, the ~~Province~~ Company or the ~~Representatives~~Underwriters, shall be contemplated by the SEC; and each Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act, shall have been filed with the SEC under the Securities Act; and the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this AgreementCommission. b(d) Subsequent to the execution and delivery of this ~~Agreement and prior to the Closing Date~~Agreement, there shall not have occurred (i) any change, or any development or event involving a prospective change, in the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries taken as one enterprise which, in the judgment of the Underwriters, is material and adverse and makes it impractical to proceed with completion of the public offering or the sale of and payment for the Offered Securities; (ii) any downgrading in the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined in Section 3(a) of the Exchange Act), but not including a change in outlook; (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the judgment of the Underwriters, be likely to prejudice materially the success of the proposed issue, sale or distribution of the Offered Securities, whether in the primary market or in respect of dealings in the secondary market; (iv) any material ~~adverse change~~ 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; (v) any suspension of trading of any securities of the Company on the New York Stock Exchange; (vi) any banking moratorium declared by U.S. Federal or New York State authorities; (vii) any major disruption of settlements of securities or clearance services in the ~~financial~~United States; or (viii) any attack on, ~~economic~~ outbreak or ~~political condition~~ escalation of hostilities or act of terrorism involving the United States, any declaration of war by Congress or any other national or international calamity or emergency, in any such case if, in the judgment of the ~~Province from that set forth in the Registration Statement~~Underwriters, the ~~Time~~ effect of ~~Sale Information and the Final Prospectus; and the Underwriters shall have received~~any such attack, ~~on the Closing Date~~outbreak, ~~a certificate dated the Closing Date and signed by the Minister of Finance~~ escalation, act, declaration, calamity or emergency makes it impractical to proceed with completion of the ~~Province,~~ public offering or the ~~Deputy Minister~~ sale of ~~Finance of~~ and payment for the ~~Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth in the first clause of this Section 9(b)~~Offered Securities. c(e) The Underwriters shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Provinceopinion, dated the Closing Date, ~~to the effect that under the laws~~ of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt Xxxx Xxxxxxx LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated the Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion, to the effect that: (i) The Securities are exempted securities under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the ~~Province~~ Company and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, Selling Stockholders substantially in the ~~light~~ form of the circumstances under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunderExhibit A hereto. (f) The Underwriters shall have received ~~an opinion of Linklaters~~ from Xxxxxx Xxxxxx & Xxxxxxx LLP, ~~United Kingdom~~ counsel for the ~~Province~~Underwriters, such opinion or opinions, dated the Closing Date, ~~subject~~ with respect to the incorporation of the Company, the validity of the Offered Securities delivered on the Closing Date, the Registration Statement, the Prospectus and other related matters as the Representative may require, and the Selling Stockholders and the Company shall have furnished to such ~~qualifications and based~~ counsel such documents as they request for the purpose of enabling them to pass upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to thereinmatters. (g) The Underwriters shall have received ~~an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters~~a certificate, dated the Closing Date, ~~as to the matters specified in subdivisions (i), and (iv) (but only as~~ of the ~~date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications~~ President or any Vice President and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a ~~certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province~~ principal financial or ~~another~~ accounting officer of the ~~Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date,~~ Company in which such ~~Minister, Deputy Minister or other officer, as the case may be,~~ officers shall state that: to the best of ~~his or her~~ their knowledge after reasonable investigation, ~~shall state that~~ the representations and warranties of the ~~Province~~ Company in this Agreement are true and correct~~, that~~ ; the ~~Province~~ Company has complied in all material respects with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date~~, that~~ ; no stop order suspending the effectiveness of ~~the~~ any Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the ~~SEC~~Commission; and, subsequent to the dates of the most recent financial statements included or incorporated by reference in the General Disclosure Package, there has been no material adverse change, nor any development or event involving a prospective material adverse change, in the condition (financial or other), business, properties or results of operations of the Company and its subsidiaries taken as a whole except as set forth in the General Disclosure Package or as described in such certificate. (h) The Underwriters shall have received a letter, dated the Closing Date, of PricewaterhouseCoopers LLP which meets the requirements of subsection (b) of this Section, except that the specified date referred to in such subsection will be a date not more than three days prior to the Closing Date for the purposes of this subsection. (i) ~~The purchase and sale~~ On or prior to the date of this Agreement, the Underwriters shall have received lockup letters, substantially in the form of Exhibit E hereto, from each of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New Yorkpersons set forth on Schedule D-1. (j) The Province shall have furnished to the Underwriters and to counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. k) Subsequent to the execution of this Agreement and On or prior to the Closing Date, ~~there~~ the Underwriters shall ~~not~~ have ~~occurred any downgrading~~received a lockup letter, ~~nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications,~~ substantially in the ~~ratings accorded the debt securities~~ form of Exhibit E hereto, from each of the ~~Province~~ persons set forth on Schedule D-2. (k) The Custodian will deliver to the Underwriters a letter stating that it will deliver to each Selling Stockholder, other than the Onex Selling Stockholders, a United States Treasury Department Form 1099 (or other applicable form or statement specified by ~~any nationally recognized statistical rating agency~~ the United States Treasury Department regulations in lieu thereof) on or before January 31 of the year following the date of this Agreement. (l) To avoid a 28% backup withholding tax each Selling Stockholder will deliver to each Underwriter a properly completed and executed United States Treasury Department Form W9 (or other applicable form or statement specified by Treasury Department regulations in lieu thereof). (m) Contemporaneously with the consummation of the offering of the Offered Securities, the Company’s purchase of the Repurchased Shares pursuant to this Agreement will be consummated. (n) On or prior to the date of this Agreement, the Underwriters shall have received a certificate of the Chief Financial Officer substantially in the ~~United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives~~form of Exhibit F hereto. The ~~Province~~ Selling Stockholders and the Company will furnish ~~the Underwriters~~ each Underwriter with such conformed copies of such opinions, certificates, letters and documents as the ~~Representatives~~ Underwriters reasonably ~~request~~requests. If The Underwriters may waive compliance with any of conditions to the ~~above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all~~ obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreementhereunder.

Appears in 1 contract

Samples: Underwriting Agreement (Spirit AeroSystems Holdings, Inc.)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the several Underwriters to purchase and pay for the Offered Securities at each Time of Delivery will be subject to the accuracy of the representations and warranties on the part of the Province herein, to the accuracy of the statements of the representatives of the Province made pursuant to the provisions hereof, to the performance by the Province of its obligations hereunder and with regard to the Securities and to the following ~~additional~~ conditions precedent: (a) ~~Prior~~ The representations and warranties of the Company contained in this Agreement and any certificates delivered pursuant to this Agreement shall be true and correct at and as of such Time of Delivery, and the ~~Closing Date, no~~ Company has performed all of its obligations and satisfied all of the conditions hereunder on its part that are required to be performed or satisfied on or before such Time of Delivery; (b) The Final Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 5(a) hereof. No stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement or of any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or, to the ~~knowledge~~ Knowledge of the ~~Province or the Representatives~~Company, shall be contemplated by the SEC; and each Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act, shall have been filed with the SEC under the Securities Act; and the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this Agreement.Commission; b(c) Subsequent to the execution and delivery of this ~~Agreement and prior to the Closing Date~~Agreement, there shall not have occurred any ~~material adverse change~~ change, or any development involving a prospective change, in the ~~financial~~condition, ~~economic~~ financial or ~~political condition~~ otherwise, or in the earnings, business or operations of the ~~Province from that set forth~~ Company and its Subsidiaries, taken as a whole, the effect of which makes it, in the ~~Registration Statement~~judgment of the Representative, impracticable to proceed with the offering, sale or delivery of the Offered Securities on such Time of Sale Information and the Final Prospectus; and the Underwriters shall have received, on the Closing Date, a certificate dated the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth in the first clause of this Section 9(b). c) The Underwriters shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Province, dated the Closing Date, to the effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated the Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the RepresentativesDelivery, as the case may be, ~~Canadian counsel to~~ on the ~~Province~~terms and in the manner contemplated by this Agreement; (d) The Representative shall have received letters, is dated, respectively, the date hereof and each Time of Delivery, of MaloneBailey LLP, independent public accountants, substantially in form and substance reasonably satisfactory to ~~them~~ the Underwriters, containing statements and ~~they believe~~ information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the General Disclosure Package and the Final Prospectus; provided that the ~~Representatives are justified in relying thereon.~~letter delivered on each Time of Delivery shall use a “cut-off date” not earlier than three business days prior to such Time of Delivery; (e) The ~~Underwriters~~ Representative shall have received the opinion and negative assurance letter of ~~Sxxxxxxx & Sterling~~ Xxxxxx LLP, United States counsel for the ~~Province~~Company, dated ~~the Closing Date~~such Time of Delivery, ~~subject to such qualifications~~ in form and ~~based upon such assumptions as are customary in the United States in respect of such opinion,~~ substance reasonably satisfactory to the ~~effect that:~~Representative; (if) The ~~Securities are exempted securities under~~ Representative shall have received the ~~Trust Indenture Act~~ opinion of ~~1939~~Xxxxx, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, Xxxxxx counsel for the ~~Province and their examination of specified documents~~Company, ~~no facts have come to~~ dated such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements thereinDelivery, in ~~the light of the circumstances under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements~~ form and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects substance reasonably satisfactory to the ~~requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder.~~Representative; f(g) The ~~Underwriters~~ Representative shall have received an the opinion of ~~Linklaters~~ XxxxXxxxxxxxxxx LLP, ~~United Kingdom~~ Singapore counsel for the ~~Province~~Company, dated ~~the Closing Date~~such Time of Delivery, ~~subject to such qualifications~~ in form and ~~based upon such assumptions as are customary in the United Kingdom in respect of such opinion,~~ substance reasonably satisfactory to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein.Representative; g(h) The ~~Underwriters~~ Representative shall have received ~~an opinion of Dxxxx Xxxx & Wxxxxxxx~~ from Xxxxxxx Procter LLP, United States counsel for the Underwriters, a negative assurance letter and an opinion, dated such Time of Delivery, with respect to such matters as the ~~Closing Date, as to the matters specified in subdivisions~~ Representative may require; (i~~), and (iv~~) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on The Representative shall have received the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the ProvinceXxxxx & Xxxx Singapore LLP, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of the Province in this Agreement are true and correct, that the Province has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the SEC. i) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province shall have furnished to the Underwriters and to Singapore counsel for the ~~Underwriters~~ Underwriters, dated such ~~further certificates and documents as the Representatives and such counsel reasonably request. k) Subsequent to the execution~~ Time of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implicationsDelivery, in ~~the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters~~ form and ~~documents will be in compliance with the provisions hereof only if they are~~ substance reasonably satisfactory to the Representatives. The Province will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.Representative;

Appears in 1 contract

Samples: Underwriting Agreement (Bitdeer Technologies Group)

Conditions of the Obligations of the Underwriters. The ~~respective~~ several obligations of the ~~several~~ Underwriters to purchase and pay for the ~~Securities~~ Notes will be subject to the accuracy of the representations and warranties ~~on the part of the Province~~ made herein~~, to the accuracy of the statements of the representatives of the Province made pursuant to the provisions hereof~~, to the performance by the ~~Province~~ Depositor and Verizon Wireless of ~~its~~ their obligations ~~hereunder and with regard to the Securities~~ hereunder, and to the following additional conditions precedent: (a) ~~Prior~~ On the Closing Date, each of the Transaction Documents shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully conformed copy of the Notes and Certificates, and the Notes shall have been duly executed and delivered by the Trust and duly authenticated by the Indenture Trustee. The Transaction Documents shall be substantially in the forms heretofore provided to the Representatives. (b) On or before the Closing Date, the Underwriters shall have received the Accountant’s Due Diligence Report and letters, dated as of the date of the Preliminary Prospectus and Prospectus, respectively, of the Accounting Firm, substantially in the form of the drafts to which the Representatives have agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Underwriters and counsel to the Underwriters. (c) The Prospectus and any supplements thereto shall have been filed (if required) with the Commission in accordance with the Rules and Regulations; and, before the Closing Date, no stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Province~~ Depositor or the ~~Representatives~~Underwriters, shall be contemplated by the ~~SEC; and each Issuer Free Writing Prospectus, to~~ Commission or by any authority administering any state securities or blue sky law. (d) Since the ~~extent required by Rule 433 under~~ respective dates as of which information is given in the ~~Securities Act, shall have been filed with the SEC under the Securities Act;~~ Preliminary Prospectus and the ~~Final~~ Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this Agreement. b) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have ~~occurred~~ been (i) any material adverse change in the ~~financial~~business, ~~economic~~ business prospects, properties, financial condition, or ~~political condition~~ results of operations of Verizon Wireless and its subsidiaries, including the ~~Province from that~~ Depositor and the Trust, taken as a whole, or (ii) any development involving a prospective material adverse change in or affecting the Receivables or the servicing or origination business of Verizon Wireless, in each case other than as set forth or contemplated in the ~~Registration Statement, the Time of Sale Information~~ Preliminary Prospectus and the ~~Final~~ Prospectus; and the Underwriters shall have received, on the Closing Date, a certificate dated the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth in the first clause of this Section 9(b). c(e) The Underwriters shall have received an opinion or opinions of in-house counsel to the ~~Attorney General~~ Depositor and Verizon Wireless, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (f) The Underwriters shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the ~~Province~~Depositor, Verizon Wireless and the ~~Deputy Attorney General of the Province~~Trust, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory addressed to the Representatives, ~~as Canadian~~ dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the ~~Province~~Underwriters, addressing (i) corporate, enforceability and securities law matters, (ii) the enforceability of the Notes, (iii) certain true sale and nonconsolidation bankruptcy matters, (iv) bankruptcy proceedings of Verizon Wireless with respect to preference matters, (v) bankruptcy proceedings of Verizon Wireless and the impact of Annual Upgrade Offers, (vi) certain security interest matters and (vii) certain United States federal income tax matters. (g) The Underwriters shall have received one or more negative assurance letters of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Trust, the Depositor and Verizon Wireless, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (h) The Underwriters shall have received an opinion or opinions, addressed to the Underwriters, of Xxxxxxxx, Xxxxxx & Xxxxxx, P.A., counsel to the Indenture Trustee, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (i) The Underwriters shall have received an opinion or opinions, addressed to the Underwriters, of Xxxxxx Xxxxx LLP, counsel to the Owner Trustee, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (j) The Underwriters shall have received an opinion or opinions, addressed to the Underwriters, of Xxxxxx Xxxxx XXX, special Delaware counsel for the Trust, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (k) The Underwriters shall have received an opinion or opinions, addressed to the Underwriters, of Xxxxxx Xxxxx XXX, special Delaware counsel to the Depositor, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (l) The Underwriters shall have received an opinion or opinions, addressed to the Underwriters, of Xxxxxx Xxxxx XXX, special Delaware counsel to the Master Trust, dated as of the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (m) The Underwriters shall have received an opinion or opinions, addressed to the Underwriters, of Bass, Xxxxx & Xxxx PLC, counsel to the Asset Representations Reviewer, dated the Closing Date, and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (n) The Underwriters shall have received one or more negative assurance letters of Xxxxx Xxxxx LLP, counsel for the Underwriters, addressed to the Underwriters. (o) The Underwriters shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Underwriters, dated the Closing Date, to the effect that ~~under~~ the ~~laws~~ Representatives and the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securitiesits date. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. dp) The Underwriters shall have received ~~an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada,~~ certificates dated the Closing ~~Date, as to the matters specified in subdivisions (i) through (vii)~~ Date of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) any one of the ~~Minister of Finance~~ President, Chief Financial Officer, any Vice President, the Controller, the Treasurer or Assistant Treasurer of the ~~Province, the Deputy Minister of Finance of the Province or another~~ Depositor and Verizon Wireless in which such officer ~~of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion~~ shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion, to the effect that: (i) The Securities are exempted securities under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that : (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of made by such entity contained in the ~~Province in~~ Transaction Documents and this Agreement are true and ~~correct~~correct in all material respects (except to the extent any such representation or warranty is already qualified by materiality, in which case such representation or warranty is true and correct in all respects), that ~~the Province~~ such party has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at under such agreements on or ~~prior~~ before the Closing Date in all material respects (except to the extent any such agreement or condition is already qualified by materiality, in which case such agreement or condition has been complied with or satisfied, as applicable, in all respects), (B) since the date of this Agreement there has not occurred (i) any material adverse change in the business, business prospects, properties, financial condition or results of operations of the Trust, the Depositor or Verizon Wireless or (ii) to the best of such officer’s knowledge, any development involving a prospective material adverse change in or affecting the Receivables or the servicing or origination business of Verizon Wireless, in each case except as disclosed to the Representatives in writing and (C) there are no actions, proceedings or investigations to which the Depositor or Verizon Wireless is a party or that are, to such party’s knowledge after due inquiry, threatened before any court, administrative agency or other tribunal having jurisdiction over Verizon Wireless or the Depositor, (i) asserting the invalidity of this Agreement, any Transaction Document or the Notes, (ii) seeking to prevent the issuance of the Notes or the consummation of any of the transactions contemplated by this Agreement or the Transaction Documents, (iii) which would reasonably be expected to have a Material Adverse Effect or (iv) seeking adversely to affect the federal income tax attributes of the Notes as described in the Prospectus or the Preliminary Prospectus under the heading “U.S. Tax Consequences.” (q) The Representatives shall have received evidence satisfactory to the Representatives and counsel to the Underwriters that, on or before the Closing Date, ~~that no stop order suspending~~ UCC-1 financing statements, have been or are being filed in all applicable governmental offices reflecting (A) the ~~effectiveness~~ transfer of the ~~Registration Statement has been issued~~ interest of the Originators in the related Receivables, and ~~no proceedings for that purpose~~ the proceeds thereof to the Depositor pursuant to the Originator Receivables Transfer Agreement, (B) the transfer of the interest of the Master Trust in the related Receivables and the proceeds thereof to the Depositor pursuant to the Master Trust Receivables Transfer Agreement, (C) the transfer of the interest of the Depositor in the Originator Receivables Transfer Agreement, the Master Trust Receivables Transfer Agreement, the Receivables and the proceeds thereof to the Trust pursuant to the Transfer and Servicing Agreement, and (D) the grant by the Trust to the Indenture Trustee under the Indenture of a security interest in the interest of the Trust in the Transfer and Servicing Agreement, the Receivables and the proceeds thereof. (r) The Class A-1a Notes shall have been ~~instituted or are contemplated~~ rated at least AAA (sf) by ~~the SEC~~S&P Global Ratings (“S&P”) and at least Aaa (sf) by Xxxxx’x Investors Service, Inc. (“Moody’s”). The Class A-1b Notes shall have been rated at least AAA (sf) by S&P and at least Aaa (sf) by Moody’s. The Class B Notes shall have been rated at least AA+ (sf) by S&P and at least Aa1 (sf) by Moody’s. The Class C Notes shall have been rated at least A+ (sf) by S&P and at least Aa3 (sf) by Moody’s. (s) The Underwriters shall have received, from each of Verizon Wireless, Verizon, the Originators and the Depositor, a certificate executed by a secretary or assistant secretary thereof (or the equivalent) to which shall be attached certified copies of the: (i) formation and governing documents, (ii) applicable resolutions and (iii) designation of incumbency of each such entity. The ~~purchase and sale~~ Underwriters shall have received, from the Trust, a certified copy of the ~~Securities in accordance with~~ certificate of formation and an executed copy of the ~~provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority~~ trust agreement evidencing formation of ~~Canada,~~ the ~~United States of America, the Province or the State of New York~~trust. j(t) The ~~Province~~ Representatives shall have ~~furnished~~ received evidence of any required Lien releases to be filed or recorded (immediately following the Closing Date) with respect to the ~~Underwriters~~ Permitted Liens affecting the Receivables from all applicable creditors of Verizon Wireless, in form and substance satisfactory to ~~counsel for the Underwriters such further certificates and documents as~~ the Representatives and ~~such~~ counsel ~~reasonably request~~to the Underwriters. k(u) ~~Subsequent~~ All representations and warranties made by or on behalf of Verizon Wireless and the Depositor in the Transaction Documents to which each is a party are true and correct in all material respects as of the Closing Date. (v) The Underwriters shall have received an opinion of Xxxxx Xxxxx LLP, special counsel to the ~~execution~~ Cap Counterparty, addressed to the Representatives, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters, addressing the enforceability of ~~this Agreement and prior to~~ the Cap Agreement. (w) The Representatives shall have received a certificate, dated the Closing Date, ~~there shall not have occurred~~ signed by an authorized officer or any ~~downgrading, nor shall any notice have been given~~ Vice President of ~~any intended or potential downgrading or of any placing on credit watch with negative implications~~the Indenture Trustee, in which such officer shall state that the ~~ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency~~ information contained in the ~~United States. All such opinions, certificates, letters~~ Form T-1 for the Indenture Trustee is true and ~~documents will be in compliance~~ accurate as of its filing with the ~~provisions hereof only if they are reasonably satisfactory~~ Commission. The Depositor will provide or cause to be provided to the ~~Representatives. The Province will furnish the~~ Underwriters ~~with such~~ conformed copies of such opinions, certificates, letters and documents as the ~~Representatives~~ Underwriters or counsel to the Underwriters reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.

Appears in 1 contract

Samples: Underwriting Agreement (Verizon Owner Trust 2020-A)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the several Underwriters to purchase and pay for the Firm Securities on the First Closing Date and the Optional Securities to be purchased on each Optional Closing Date, as the case may be, will be subject to the ~~accuracy~~ condition that each of the ~~representations~~ Registration Statement, the ADS Registration Statement and ~~warranties~~ the Exchange Act Registration Statement shall have become effective not later than 4:30 p.m. (New York City time) on the part of the Province herein, to the accuracy of the statements of the representatives of the Province made pursuant to the provisions hereof, to the performance by the Province of its obligations hereunder and with regard to the Securities date hereof and to the following additional conditions precedent: (a) ~~Prior~~ The representations and warranties of the Company contained in this Agreement and any certificates delivered pursuant to ~~the~~ this Agreement shall be true and correct on and as of each Closing Date, ~~no stop~~ and the Company shall have complied with all of the agreements, performed all of its obligations and satisfied all of the conditions hereunder on its part that are required to be complied with, performed or satisfied on or before each Closing Date. (b) No order suspending the effectiveness of the Registration ~~Statement~~Statement shall be in effect, ~~as amended from time~~ and no proceeding for such purpose or pursuant to ~~time,~~ Section 8A under the Act shall be pending before or threatened by the Commission; the Final Prospectus and each Issuer Free Writing Prospectus shall have been ~~issued and no proceedings for that purpose shall have been instituted or, to~~ timely filed with the ~~knowledge~~ Commission under the Act (in the case of ~~the Province or the Representatives, shall be contemplated by the SEC; and each~~ an Issuer Free Writing Prospectus, to the extent required by Rule ~~433 under~~ 433) and in accordance with Section 5(a) hereof; and all requests by the ~~Securities Act,~~ Commission for additional information shall have been filed with the SEC under the Securities Act; and the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this Agreementcomplied with. b(c) Subsequent to the execution and delivery of this ~~Agreement and prior to the Closing Date~~Agreement, there shall not have occurred any ~~material adverse change~~ change, or any development involving a prospective change, in the ~~financial~~condition, ~~economic~~ financial or ~~political condition~~ otherwise, or in the earnings, business or operations of the ~~Province from that set forth~~ Company and its Controlled Entities, taken as a whole, the effect of which in the ~~Registration Statement~~sole judgment of the Representative makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the ~~Time of Sale Information and the Final Prospectus; and the Underwriters shall have received,~~ Offered Securities on the First Closing Date or the Optional Closing Date, a certificate dated the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth in the first clause of this Section 9(b). c) The Underwriters shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Province, dated the Closing Date, to the effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated the Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, ~~Canadian counsel~~ on the terms and in the manner contemplated by this Agreement. (d) There shall not be any litigation, proceedings, investigations, or administrative sanctions initiated or to the ~~Province~~Company’s knowledge, is threatened by any Governmental Agency or before any Governmental Agency, in each case with due authority, against or involving any party hereto, in the PRC or elsewhere, that seeks to declare the issuance and sales of the Offered Securities, the listing and trading of the ADSs on the Nasdaq or the transactions contemplated by the Transaction Documents to be non-compliant, unlawful or illegal. (e) There shall not be any adverse legislative or regulatory developments in the PRC, including but not limited to the M&A Rules and Related Clarifications and laws, rules and regulations that would affect the validity and enforceability of the VIE Agreements, which in the sole judgment of the Representative would make it inadvisable or impractical to proceed with the public offering or the delivery of the Offered Securities at the First Closing Date or the Additional Closing Date, as the case may be, on the terms and in the manner contemplated in this Agreement. There shall not be any litigation, proceedings, investigations, processes for administrative sanctions or other actions initiated or threatened by any Governmental Agency before any Governmental Agency, in each case with due authority, against or involving any party hereto, in the PRC or elsewhere, that seeks to declare non-compliance, unlawful or illegal, under PRC laws, rules and regulations, the VIE Agreements, the issuance and sales of the Offered Shares and ADSs, the listing and trading of the ADSs on the Nasdaq or the transactions contemplated by this Agreement and the Deposit Agreement the effect of which, in the judgment of the Representative, makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Offered Securities on the First Closing Date or the Optional Closing Date, as the case may be, on the terms and in the manner contemplated by this Agreement. (f) The Representative shall have received letters, dated, respectively, the date hereof and each Closing Date, of Ernst & Young Hua Ming LLP, confirming that they are a registered public accounting firm and independent public accountants within the meaning of the Securities Laws and substantially in form and substance satisfactory to ~~them~~ the Underwriters, containing statements and ~~they believe~~ information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Final Prospectus; provided that the ~~Representatives are justified in relying thereon~~letter delivered on the First Closing Date shall use a “cut-off date” not earlier than the date hereof. e(g) The ~~Underwriters~~ Representative shall have received ~~the~~ an opinion and disclosure letter, dated such Closing Date, of ~~Sxxxxxxx~~ Shearman & Sterling LLP, United States counsel for the ~~Province~~Company, dated the Closing Date, ~~subject~~ in form and substance satisfactory to the Representative. (h) The Company shall have received an opinion from TransAsia Lawyers, PRC counsel for the Company, dated such ~~qualifications~~ Closing Date, in form and ~~based upon such assumptions as are customary in~~ substance satisfactory to the ~~United States in respect~~ Representative. A copy of such ~~opinion,~~ opinion shall have been provided to the ~~effect that:~~Representative with consent from such counsel. (i) The Securities are exempted securities under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters Representative shall have received an opinion ~~of Linklaters LLP~~from Xxxxxx and Xxxxxx, ~~United Kingdom~~ Cayman Islands counsel for the ~~Province~~Company, dated ~~the~~ such Closing Date, ~~subject to such qualifications~~ in form and ~~based upon such assumptions as are customary in the United Kingdom in respect of such opinion,~~ substance satisfactory to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to thereinRepresentative. g(j) The ~~Underwriters~~ Representative shall have received an opinion ~~of Dxxxx Xxxx~~ from Shearman & ~~Wxxxxxxx~~ Sterling, Hong Kong counsel for the Company, dated such Closing Date, in form and substance satisfactory to the Representative. (k) The Representative shall have received from Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, United States counsel for the Underwriters, such opinion or opinions, dated ~~the~~ such Closing Date, with respect to such matters as the Representative may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (l) The Representative shall have received from Haiwen & Partners, PRC counsel for the Underwriters, such opinion or opinions, dated such Closing Date, with respect to such matters as the Representative may require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (m) The Representative shall have received an opinion from White & Case LLP, U.S. counsel for the Depositary, in form and substance satisfactory to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedureRepresentative. h(n) The ~~Underwriters~~ Representative shall have received a ~~certificate~~ certificate, dated such Closing Date, satisfactory to the Representative, of ~~the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another~~ an executive officer of the ~~Ministry of Finance~~ Company and a principal financial or accounting officer of the ~~Province satisfactory to the Representatives, dated the Closing Date,~~ Company in which such ~~Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation,~~ officers shall state ~~that~~ that: (i) the representations and warranties of the ~~Province~~ Company in this Agreement are true and correct~~, that~~ ; the ~~Province~~ Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to ~~the~~ such Closing Date, ~~that~~ (ii) no stop order suspending the effectiveness of ~~the~~ any Registration Statement has been issued and no proceedings for that purpose have been instituted or or, to the best of their knowledge, are contemplated by the ~~SEC~~Commission, (iii) subsequent to the date of the most recent financial statements in the Registration Statement, the General Disclosure Package and the Final Prospectus, there has been no development or event having a Material Adverse Effect, or any development or event involving a prospective change that is reasonably likely to have a Material Adverse Effect except as set forth in the General Disclosure Package or as described in such certificate, and (iv) such other matters as the Representative may reasonably request. i(o) On or prior to the date hereof, the Representative shall have received lock-up letters from each of the directors and executive officers of the Company, and certain shareholders of the Company listed in Schedule C each substantially in the form and substance set forth in Exhibit A. (p) The ~~purchase~~ Company and ~~sale~~ the Depositary shall have executed and delivered the Deposit Agreement and the Deposit Agreement shall be in full force and effect and the Company and the Depositary shall have taken all action necessary to permit the deposit of the Offered Shares and the issuance of the Offered Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New YorkDeposit Agreement. j(q) The ~~Province~~ Depositary shall have furnished or caused to be furnished to the ~~Underwriters~~ Representative at such Closing Date, certificates satisfactory to the Representative evidencing the deposit with it of the Offered Shares being so deposited against issuance of ADRs evidencing the Offered Securities to be delivered by the Company at such Closing Date, and the execution, countersignature (if applicable), issuance and delivery of ADRs evidencing such Offered Securities pursuant to ~~counsel for~~ the ~~Underwriters~~ Deposit Agreement and such ~~further certificates and documents~~ other matters related thereto as the ~~Representatives and such counsel~~ Representative may reasonably request. k(r) ~~Subsequent to the execution of this Agreement and prior to the Closing Date, there~~ FINRA shall not have ~~occurred~~ raised any ~~downgrading~~objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereunder. (s) No Issuer Free Writing Prospectus or amendment or supplement to the Registration Statement, ~~nor~~ the ADS Registration Statement or the Final Prospectus shall ~~any notice~~ have been ~~given of any intended or potential downgrading or of any placing~~ filed to which the Representative shall have objected in writing. (t) The Offered Securities shall have been approved to be listed on ~~credit watch with negative implications, in~~ the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the RepresentativesNasdaq. The ~~Province~~ Company will furnish the ~~Underwriters~~ Representative with such conformed copies of such opinions, certificates, letters and documents as the ~~Representatives~~ Representative may reasonably request. If any condition (whether a condition to the obligations of the ~~above conditions~~ several Underwriters to purchase and pay for the Firm Securities on the First Closing Date or to purchase and pay for the Optional Securities on each Optional Closing Date) specified in this Section shall not have been fulfilled when and as ~~reasonably contemplated herein~~required to be fulfilled, this Agreement ~~and all obligations of~~ shall be deemed terminated by the ~~Underwriters hereunder may be terminated with respect to Securities at, or~~ Company at any time at or prior ~~to,~~ to the First Closing Date by or such Optional Closing Date, as the ~~Representatives on behalf of the Underwriters~~case may be, unless as otherwise provided, and such termination shall be without ~~any~~ liability ~~on the part~~ of any ~~Underwriter to the Province or of the Province~~ party to any ~~Underwriter,~~ other party except as provided in Section 611. Notwithstanding the immediately preceding paragraph, ~~Section 10 and Section 13 hereof. Notice~~ the Representative may in their sole discretion waive on behalf of ~~such cancellation shall be given as soon as practicable~~ the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in ~~accordance with Section 14~~ respect of ~~this Agreement~~an Optional Closing Date or otherwise.

Appears in 1 contract

Samples: Underwriting Agreement (Qunar Cayman Islands Ltd.)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the several Underwriters to purchase and pay for the ~~Securities~~ Shares will be subject to the accuracy of the representations and warranties on the part of the ~~Province~~ Company and the Selling Stockholder herein, to the accuracy of the statements of Company and the ~~representatives of the Province~~ Selling Stockholder officers made pursuant to the provisions hereof, to the performance by the ~~Province~~ Company and the Selling Stockholder of its obligations hereunder ~~and with regard to the Securities~~ and to the following additional conditions precedent: (a) ~~Prior~~ The Representatives shall have received a letter, dated as of the date of this Agreement, of PricewaterhouseCoopers LLP, in form and substance satisfactory to the ~~Closing Date~~Representatives, no containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements of the Company and its subsidiaries included or incorporated by reference in the Registration Statement. (b) The Prospectus and each Issuer Free Writing Prospectus (if required by Rule 433 under the Act) shall have been filed with the Commission in accordance with the Rules and Regulations and Section 5(a) of this Agreement. No stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement or of any parts thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Act shall have been instituted or, to the knowledge of the ~~Province~~ Company or ~~the Representatives~~any Underwriter, shall be contemplated by the SEC; and each Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act, shall have been filed with the SEC under the Securities Act; and the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this AgreementCommission. b(c) Subsequent to the earlier of (A) the Time of Sale and (B) the execution of this ~~Agreement and prior to the Closing Date~~Agreement, there shall not have occurred (i) any ~~material adverse change~~ change, or any development or event involving a prospective change, in or affecting particularly the business or properties of the Company or its subsidiaries which, in the ~~financial, economic or political condition~~ judgment of a majority in interest of the ~~Province~~ Underwriters, including any Representative, materially impairs the investment quality of the Shares, (ii) any downgrading in the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange 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), (iii) any suspension or limitation of trading in securities generally on the NYSE, or the setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Company on such 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 a majority in interest of the Underwriters, including any Representative, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Shares. (d) The Representatives shall have received an opinion, dated the Closing Date, from ~~that set forth~~ Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, counsel for the Company, with respect to such matters and in such form as is reasonably satisfactory to the Representatives. (e) The Representatives shall have received an opinion, dated the Closing Date, from Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP, counsel for the Selling Stockholder, with respect to such matters and in such form as is reasonably satisfactory to the Representatives. (f) The Representatives shall have received an opinion, dated the Closing Date, from counsel for the Selling Stockholder, with respect to such matters and in such form as is reasonably satisfactory to the Representatives. (g) The Representatives shall have received from Cravath, Swaine & Xxxxx LLP, counsel for the Underwriters, such opinion or opinions, dated the Closing Date, with respect to the incorporation of the Company, the validity of the Shares, the Registration Statement, the Time of Sale ~~Information~~ Information, the Prospectus and other related matters as they may require, and the ~~Final Prospectus; and the Underwriters~~ Company shall have ~~received, on~~ furnished to such counsel such documents as they request for the ~~Closing Date, a certificate dated the Closing Date and signed by the Minister~~ purpose of ~~Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory~~ enabling them to ~~the Representatives to the effect set forth in the first clause of this Section 9(b)~~pass upon such matters. c(h) The ~~Underwriters~~ Representatives shall have received ~~an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province,~~ a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Provincecertificate, dated the Closing Date, to the effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the ~~Province, except as rights to indemnity~~ Chief Executive Officer or any Vice-President and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official a principal financial or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated the Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another accounting officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion, to the effect that: (i) The Securities are exempted securities under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, Company in which such ~~Minister, Deputy Minister or other officer, as the case may be~~officers, to the best of ~~his or her~~ their knowledge after reasonable investigation, shall state that the representations and warranties of the ~~Province~~ Company in this Agreement are true and correct, that the ~~Province~~ Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, that no stop order suspending the effectiveness of the Registration Statement or of any parts thereof has been issued and no proceedings for that purpose or pursuant to Section 8A of the Act have been instituted or are contemplated by the ~~SEC~~Commission and that, 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 the Company and its subsidiaries considered in the aggregate, except as set forth in or contemplated by the Time of Sale Information and the Prospectus. (i) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province Representatives shall have furnished to the Underwriters and to counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. k) Subsequent to the execution of this Agreement and prior to received a letter, dated the Closing Date, ~~there shall not have occurred any downgrading, nor shall any notice have been given~~ of ~~any intended or potential downgrading or of any placing on credit watch with negative implications~~PricewaterhouseCoopers LLP, in ~~the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters~~ form and ~~documents will be in compliance with the provisions hereof only if they are reasonably~~ substance satisfactory to the ~~Representatives~~Underwriters, which reconfirms the matters set forth in their letter delivered pursuant to subsection (a) of this Section and covers any additional financial information included in the Prospectus (which is not covered by their letter delivered pursuant to subsection (a) of this Section). (j) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives and certain officers and directors of the Company and the Selling Stockholder listed on Schedule V hereto relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to the Representatives on or before the date of this Agreement, shall be in full force and effect on the Closing Date. The ~~Province~~ Company will furnish the ~~Underwriters~~ Representatives with such conformed copies of such opinions, certificates, letters and documents ~~as the Representatives~~ they reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.

Appears in 1 contract

Samples: Underwriting Agreement (Alcoa Corp)

Conditions of the Obligations of the Underwriters. The ~~respective obligations~~ obligation of ------------------------------------------------- the ~~several~~ Class A Underwriters and Class B Underwriters to purchase and pay for the ~~Securities~~ Class A Notes and Class B Notes, respectively, will be subject to the accuracy of the representations and warranties on by Spiegel and the ~~part of the Province~~ Bank herein, to the accuracy of the statements of officers of Spiegel and the ~~representatives of the Province~~ Bank made pursuant to the provisions hereof, to the performance by Spiegel and the ~~Province~~ Bank of ~~its~~ their respective obligations hereunder ~~and with regard to the Securities~~ and to the following additional conditions precedent: (a) ~~Prior~~ On or prior to the date of this Agreement, the Representative shall have received a letter, dated the date of this Agreement, of KPMG, confirming that they are independent public accountants within the meaning of the Act and the applicable published Rules and Regulations thereunder, substantially in the form heretofore agreed to and otherwise in form and in substance satisfactory to the Representative and its counsel. (b) The Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 5(a) of this Agreement; and, prior to the Closing Date, no stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Province~~ Bank or the ~~Representatives~~Representative, shall be contemplated by the SEC; and each Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act, shall have been filed with the SEC under the Securities Act; and the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this AgreementCommission. b(c) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any material adverse change in the financial, economic or political condition of the Province from that set forth in the Registration Statement, the Time of Sale Information and the Final Prospectus; and the Underwriters shall have received, on the Closing Date, a certificate dated the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth in the first clause of this Section 9(b). c) The Underwriters shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Province, dated the Closing Date, to the effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement none of the following shall have occurred: (i) any change, or any development involving a prospective change, in or affecting particularly the business or properties of Spiegel or the Bank which, in the judgment of the Underwriters, make it impractical or inadvisable to proceed with the public offering or delivery of the Class A Notes and Class B Notes on the ~~Fiscal Agency Agreement~~terms and in the manner contemplated in the Prospectus, (ii) trading in securities generally on the New York Stock Exchange, the ~~issuance~~ American Stock Exchange or the over-the-counter market shall have been suspended or minimum prices shall have been established on either of such exchanges or such market by the Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction; (iii) a banking moratorium shall have been declared by Federal or state authorities; (iv) the United States shall have become engaged in hostilities, there shall have been an escalation of hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States; (v) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets of the ~~Securities~~ United States shall be such) as to make it, in the judgment of the Underwriters, impractical or inadvisable to proceed with the public offering or delivery of the Class A Notes and Class B Notes on the ~~performance by~~ terms and in the ~~Province~~ manner contemplated in the Prospectus or (vi) any material adverse change in the financial markets for asset-backed securities in the United States if, in the judgment of ~~its obligations hereunder~~ the Underwriters, the effect of which is to make it impractical or inadvisable to proceed with the public offering or delivery of the Class A Notes and ~~thereunder have been obtained~~ Class B Notes on the terms and ~~are~~ in ~~full force and effect~~the manner contemplated in the Prospectus. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The ~~Underwriters~~ Representative shall have received an ~~opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada~~opinion, dated the Closing Date, ~~as to~~ of Xxxxx, Xxxxx and Xxxxx, special counsel for Spiegel and the ~~matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9~~Bank, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance ~~satisfactory~~ to ~~them~~ the Representative and ~~they believe that the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States~~ its counsel ~~for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion,~~ to the effect that: (i) ~~The Securities are exempted securities~~ Spiegel is a corporation in good standing, duly organized and validly existing under the ~~Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect~~ laws of the ~~Securities~~ State of Delaware; the Bank is a national banking association in good standing, duly organized and validly existing under the ~~Trust Indenture Act is required for the issuance, sale and delivery~~ laws of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States of America; and each of Spiegel and the Bank (each collectively referred to in ~~respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph~~ this subsection (d) ~~of this Section 9~~ as ~~to matters of British Columbian and Canadian law and procedure. h~~a "Spiegel Entity") ~~The Underwriters shall have received a~~ is authorized by its certificate of ~~the Minister~~ incorporation or -------------- articles of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officerassociation, as the case may be, to transact the ~~best of his~~ business in which it is engaged and the Bank is not required to qualify or ~~her knowledge after reasonable investigation~~register as a foreign corporation, ~~shall~~ in any state ~~that~~ in order to conduct its business as presently conducted, except where the ~~representations~~ failure to so qualify or register would not have a material adverse effect upon the Noteholders; (ii) Each Spiegel Entity has full corporate power and ~~warranties~~ authority to enter into and perform its obligations under each Transaction Document and this Agreement to which it is a party; (iii) The Bank has the corporate power and authority and legal right to acquire, own, transfer and service the Receivables; (iv) Each of the ~~Province in~~ Transaction Documents and this Agreement ~~are true~~ has been duly authorized, executed and ~~correct~~delivered by each Spiegel Entity that is a party thereto; (v) No consent, approval, authorization or order of any court or governmental agency or body is required for (a) the execution and delivery by any Spiegel Entity of any Transaction Document or this Agreement to which such Spiegel Entity is a party or the performance by such Spiegel Entity of its obligations thereunder, or (b) the issuance and sale of the Notes; (vi) Neither the execution and delivery of the Transaction Documents and this Agreement by any Spiegel Entity that is party thereto nor the ~~Province~~ performance by such Spiegel Entity of the transactions therein contemplated nor the fulfillment of the terms thereof does or will result in any violation of any statute or regulation or any order or decree of any court or governmental authority binding upon such Spiegel Entity or its property, or conflict with, or result in a breach or violation of any term or provision, or result in a default under any of the terms and provisions, of such Spiegel Entity's certificate of incorporation or articles of association, as the case may be, or by-laws or any material indenture, loan agreement or other material agreement known to such counsel to which such Spiegel Entity is a party or by which such Spiegel Entity is bound; (vii) There is no legal or governmental proceeding pending to which any Spiegel Entity is a party or to which any Spiegel Entity is subject which, individually or in the aggregate (a) would have a material adverse effect on the ability of such Spiegel Entity to perform its obligations under the Transaction Documents or this Agreement, (b) assert the invalidity of any Transaction Document, this Agreement, the Seller Interest or the Collateral Certificate, (c) seek to prevent the issuance, sale or delivery of the Notes or any of the transactions contemplated by the Transaction Documents or this Agreement or (d) seek to adversely affect the federal income tax consequences of the Notes; and (viii) The Registration Statement has ~~complied with all agreements~~ become effective under the Act and ~~satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date, that~~ no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or ~~are contemplated~~ threatened under the Act. (ix) Each of the Transaction Documents to which the Bank is a party constitutes the legal, valid and binding agreement of the Bank under the laws of Illinois, enforceable against each such Person in accordance with its terms, subject to (w) limitations imposed by bankruptcy, insolvency, reorganization, liquidation, arrangement, fraudulent conveyance, moratorium, receivership, conservatorship, readjustment of debts, creditors' rights or other laws relating to or affecting the rights of creditors generally or the rights of creditors of national banking associations; (x) rights to indemnification and contribution which may be limited by applicable law and equitable principles or otherwise unenforceable as against public policy; (y) the unenforceability under certain circumstances of provisions imposing penalties, forfeiture, late payment charges, or an increase in interest rate upon delinquency in payment or the occurrence of any event of default; and (z) general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, and the possible unavailability of specific performance or injunctive relief, regardless of whether such enforceability is considered in a proceeding in equity or at law. (x) This Agreement constitutes the legal, valid and binding obligation of Spiegel and the Bank under the laws of the State of Illinois, enforceable against Spiegel and the Bank in accordance with its terms, subject to (w) limitations imposed by bankruptcy, insolvency, reorganization, liquidation, arrangement, fraudulent conveyance, moratorium, receivership, conservatorship, readjustment of debts, creditors' rights or other laws relating to or affecting the rights of creditors generally or the rights of creditors of national banking associations; (x) rights to indemnification and contribution which may be limited by applicable law and equitable principles or otherwise unenforceable as against public policy; (y) the unenforceability under certain circumstances of provisions imposing penalties, forfeiture, late payment charges, or an increase in interest rate upon delinquency in payment or the occurrence of any event of default; and (z) general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, and the possible unavailability of specific performance or injunctive relief, regardless of whether such enforceability is considered in a proceeding in equity or at law. (xi) When the Class A Notes and Class B Notes have been duly executed and delivered by the ~~SEC. i) The purchase and sale of~~ Issuer, authenticated by the ~~Securities~~ Indenture Trustee in accordance with the ~~provisions hereof shall not be prohibited~~ terms of the Indenture and delivered to and paid for by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province shall have furnished to the Underwriters ~~and to counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. k) Subsequent to the execution of~~ in accordance with this ~~Agreement and prior to the Closing Date~~Agreement, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents they will be ~~in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The Province~~ validly issued and outstanding, will ~~furnish the Underwriters with such conformed copies of such opinions~~constitute legal, ~~certificates, letters~~ valid and ~~documents as the Representatives reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all~~ binding obligations of the ~~Underwriters hereunder may be terminated with respect to Securities at~~Issuer, ~~or at any time prior to,~~ enforceable against the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable Issuer in accordance with ~~Section 14~~ their terms and will be entitled to the benefits of ~~this Agreement~~the Indenture, subject to (w) limitations imposed by bankruptcy, insolvency, reorganization, liquidation, arrangement, fraudulent conveyance, moratorium, receivership, conservatorship, readjustment of debts, creditors' rights or other laws relating to or affecting the rights of creditors generally or the rights of creditors of national banking associations; (x) rights to indemnification and contribution which may be limited by applicable law and equitable principles or otherwise unenforceable as against public policy; (y) the unenforceability under certain circumstances of provisions imposing penalties, forfeiture, late payment charges, or an increase in interest rate upon delinquency in payment or the occurrence of any event of default; and (z) general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, and the possible unavailability of specific performance or injunctive relief, regardless of whether such enforceability is considered in a proceeding in equity or at law. (xii) The statements in the Base Prospectus under the headings "Risk Factors--If a conservator or receiver were appointed for us, delays or reductions in payment of your notes could occur," "Material Legal Aspects of the Receivables," "ERISA Considerations" and "Federal Income Tax Consequences" and the statements in the Prospectus Supplement under the headings "Structural Summary--Tax Status" and "--ERISA Considerations" to the extent that they constitute matters of law or legal conclusions with respect thereto, have been reviewed by us and are correct in all material respects.

Appears in 1 contract

Samples: Underwriting Agreement (First Consumers Master Trust)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the several Underwriters to purchase and pay for the Securities will be subject to the accuracy of the representations and warranties on the part of the ~~Province herein~~Company herein on and as of the Time of Sale and on and as of the Closing Date as if made on the Closing Date, to the accuracy of the statements of ~~the representatives of the Province~~ Company officers made pursuant to the provisions hereof, to the performance by the ~~Province~~ Company of its obligations hereunder ~~and with regard to the Securities~~ and to the following additional conditions precedent: (a) ~~Prior~~ The Representatives shall have received a letter, dated as of the date of this Agreement, of PricewaterhouseCoopers LLP, in form and substance satisfactory to the ~~Closing Date~~Representatives, no containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements of the Company and its subsidiaries included or incorporated by reference in the Registration Statement. (b) The Prospectus and each Issuer Free Writing Prospectus (if required by Rule 433 under the Act) shall have been filed with the Commission in accordance with the Rules and Regulations and Section 4(a) of this Agreement. No stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement or of any parts thereof shall have been issued and no proceedings for that purpose or pursuant to Section 8A under the Act shall have been instituted or, to the knowledge of the ~~Province~~ Company or ~~the Representatives~~any Underwriter, shall be contemplated by the SEC; and each Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act, shall have been filed with the SEC under the Securities Act; and the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this AgreementCommission. b(c) Subsequent to the earlier of (A) the Time of Sale and (B) the execution of this ~~Agreement and prior to the Closing Date~~Agreement, there shall not have occurred (i) any ~~material adverse change~~ change, or any development or event involving a prospective change, in or affecting particularly the business or properties of the Company, or its subsidiaries which, in the ~~financial, economic or political condition~~ judgment of the ~~Province~~ Representatives, materially impairs the investment quality of the Securities; (ii) any downgrading in the rating of any debt securities of the Company by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange 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); (iii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or the setting of minimum prices for trading on such exchange, or any suspension of trading of any securities of the Company on such 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 that, in the reasonable judgment of the Representatives, the effect of any such outbreak, escalation, declaration, calamity or emergency makes it impractical or inadvisable to proceed with completion of the sale of and payment for the Securities. (d) The Representatives shall have received an opinion or opinions, dated the Closing Date, of K&L Gates LLP, Pennsylvania counsel for the Company, in form and substance reasonably satisfactory to the Representatives. (e) The Representatives shall have received an opinion and 10b-5 statement, each dated the Closing Date, of Cxxxxx Xxxxxxxx Xxxxx & Hxxxxxxx LLP, special counsel for the Company, in form and substance reasonably satisfactory to the Representatives. (f) The Representatives shall have received from ~~that set forth in~~ Cravath, Swaine & Mxxxx LLP, counsel for the Underwriters, such opinion and 10b-5 statement, each dated the Closing Date, with respect to the incorporation of the Company, the validity of the Securities, the Registration Statement, the Time of Sale ~~Information~~ Information, the Prospectus and other related matters as they may require, and the ~~Final Prospectus; and the Underwriters~~ Company shall have ~~received~~furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. In rendering such opinion, on Cxxxxxx, Sxxxxx & Mxxxx LLP may rely as to matters governed by Pennsylvania law, upon the Closing Date, a certificate dated the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory opinions referred to ~~the Representatives to the effect set forth~~ in ~~the first clause~~ subsection (d) of this ~~Section 9(b)~~Section. c(g) The ~~Underwriters~~ Representatives shall have received ~~an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province,~~ a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Provincecertificate, dated the Closing Date, to the effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations Chairman of the ~~Province in accordance with their respective terms~~ Board, President or any Vice-President and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official a principal financial or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated the Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another accounting officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion, to the effect that: (i) The Securities are exempted securities under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, Company in which such ~~Minister, Deputy Minister or other officer, as the case may be~~officers, to the best of ~~his or her~~ their knowledge after reasonable investigation, shall state that the representations and warranties of the ~~Province~~ Company in this Agreement are true and correct, that the ~~Province~~ Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, that no stop order suspending the effectiveness of the Registration Statement or of any parts thereof has been issued and no proceedings for that purpose or pursuant to Section 8A of the Act have been instituted or are contemplated by the ~~SEC~~Commission and that, 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 the Company and its subsidiaries considered in the aggregate, except as set forth in or contemplated by the Time of Sale Information and the Prospectus. i(h) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province Representatives shall have furnished to the Underwriters and to counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. k) Subsequent to the execution of this Agreement and prior to received a letter, dated the Closing Date, ~~there shall not have occurred any downgrading, nor shall any notice have been given~~ of ~~any intended or potential downgrading or of any placing on credit watch with negative implications~~PricewaterhouseCoopers LLP, in ~~the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters~~ form and ~~documents will be in compliance with the provisions hereof only if they are reasonably~~ substance satisfactory to the ~~Representatives~~Underwriters, which reconfirms the matters set forth in their letter delivered pursuant to subsection (a) of this Section and covers any additional financial information included in the Prospectus (which is not covered by their letter delivered pursuant to subsection (a) of this Section). (i) The Securities shall be eligible for clearance and settlement through DTC. The ~~Province~~ Company will furnish the ~~Underwriters~~ Representatives with such conformed copies of such opinions, certificates, letters and documents ~~as the Representatives~~ they reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.

Appears in 1 contract

Samples: Underwriting Agreement (Howmet Aerospace Inc.)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the several Underwriters to purchase and pay for the Firm Securities on the First Closing Date and the Optional Securities to be purchased on each Optional Closing Date, as the case may be, will be subject to the ~~accuracy~~ condition that each of the ~~representations~~ Registration Statement, the ADS Registration Statement and ~~warranties~~ the Exchange Act Registration Statement shall have become effective not later than 5:00 p.m. (New York City time) on the part of the Province herein, to the accuracy of the statements of the representatives of the Province made pursuant to the provisions hereof, to the performance by the Province of its obligations hereunder and with regard to the Securities date hereof and to the following additional conditions precedent: (a) ~~Prior to~~ The representations and warranties of the Company and the Selling Shareholders contained in this Agreement shall be true and correct on the date hereof and on an as of each Closing Date, ~~no stop~~ the statements of the Company and its officers made in any certificates delivered pursuant to this Agreement shall be true and correct on and as of each Closing Date and the Company and the Selling Shareholders have complied with all of the agreements, performed all of their obligations and satisfied all of the conditions hereunder on their part that are required to be complied with, performed or satisfied on or before each Closing Date. (b) No order suspending the effectiveness of the Registration ~~Statement~~Statement shall be in effect, ~~as amended from time~~ and no proceeding for such purpose or pursuant to ~~time,~~ Section 8A under the Act shall be pending before or threatened by the Commission; the Final Prospectus and each Issuer Free Writing Prospectus shall have been ~~issued and no proceedings for that purpose shall have been instituted or, to~~ timely filed with the ~~knowledge~~ Commission under the Act (in the case of ~~the Province or the Representatives, shall be contemplated by the SEC; and each~~ an Issuer Free Writing Prospectus, to the extent required by Rule ~~433 under~~ 433) and in accordance with Section 5(a) hereof; and all requests by the ~~Securities Act,~~ Commission for additional information shall have been filed with the SEC under the Securities Act; and the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this Agreementcomplied with. b(c) Subsequent to the execution and delivery of this ~~Agreement and prior to the Closing Date~~Agreement, there shall not have occurred any ~~material adverse change~~ change, or any development involving a prospective change, in the ~~financial~~condition, ~~economic~~ financial or ~~political condition~~ otherwise, or in the earnings, business or operations of the ~~Province from that set forth~~ Company and its Controlled Entities, taken as a whole, the effect of which in the ~~Registration Statement~~sole judgment of the Representatives is material and adverse and makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the ~~Time of Sale Information and the Final Prospectus; and the Underwriters shall have received,~~ Offered Securities on the First Closing Date or the Optional Closing Date, a certificate dated the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth in the first clause of this Section 9(b). c) The Underwriters shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Province, dated the Closing Date, to the effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated the Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, ~~Canadian counsel~~ on the terms and in the manner contemplated by this Agreement. (d) There shall not be any adverse legislative or regulatory developments in the PRC, including but not limited to the ~~Province~~M&A Rules and Related Clarifications and laws, is rules and regulations that would affect the validity and enforceability of the VIE Agreements, which in the sole judgment of the Representatives would make it inadvisable or impractical to proceed with the public offering or the delivery of the Offered Securities at the First Closing Date or the Additional Closing Date, as the case may be, on the terms and in the manner contemplated in this Agreement. There shall not be any litigation, proceedings, investigations, processes for administrative sanctions or other actions initiated or threatened by any governmental agency before any governmental agency, in each case with due authority, against or involving any party hereto, in the PRC or elsewhere, that seeks to declare non-compliance, unlawful or illegal, under PRC laws, rules and regulations, the VIE Agreements, the issuance and sales of the Offered Shares and ADSs, the listing and trading of the ADSs on the NYSE or the transactions contemplated by this Agreement and the Deposit Agreement the effect of which, in the judgment of the Representatives, makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Offered Securities on the First Closing Date or the Optional Closing Date, as the case may be, on the terms and in the manner contemplated by this Agreement. (e) The Representatives shall have received letters, dated, respectively, the date hereof and each Closing Date, of Deloitte Touche Tohmatsu, confirming that they are a registered public accounting firm and independent public accountants within the meaning of the Securities Laws and substantially in form and substance satisfactory to ~~them~~ the Underwriters, containing statements and ~~they believe~~ information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the General Disclosure Package and the Final Prospectus; provided that the ~~Representatives are justified in relying thereon~~letter delivered on the First Closing Date shall use a “cut-off date” not earlier than the date hereof. e(f) The ~~Underwriters~~ Representatives shall have received the ~~opinion~~ opinions and disclosure letter, dated such Closing Date, of ~~Sxxxxxxx~~ Skadden, Arps, Slate, Xxxxxxx & ~~Sterling~~ Xxxx LLP, United States counsel for the ~~Province~~Company and the Selling Shareholders, in form and substance satisfactory to the Representatives. (g) The Company shall have received an opinion from Han Kun Law Offices, PRC counsel for the Company, dated ~~the~~ such Closing Date, ~~subject~~ in form and substance satisfactory to ~~such qualifications and based upon such assumptions as are customary in~~ the ~~United States in respect~~ Representatives. A copy of such ~~opinion,~~ opinion shall have been provided to the ~~effect that:~~Representatives with consent from such counsel. (h) The Representatives shall have received an opinion from Xxxxxxx Xxxxx Xxxxxxx, Cayman Islands counsel for the Company, dated such Closing Date, in form and substance satisfactory to the Representatives. (i) The Securities are exempted securities under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters Representatives shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx from Xxxxxxx Xxxxxxx & ~~Wxxxxxxx~~ Xxxxxxxx LLP, United States counsel for the Underwriters, such opinions and disclosure letter, dated ~~the~~ such Closing Date, with respect to such matters as to the ~~matters specified in subdivisions (i)~~Representatives may require, and ~~(iv) (but only as of~~ the ~~date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject~~ Company and the Selling Shareholders shall have furnished to such ~~qualifications and based~~ counsel such documents as they request for the purpose of enabling them to pass upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedurematters. h(j) The ~~Underwriters~~ Representatives shall have received ~~a certificate~~ from Fangda Partners, PRC counsel for the Underwriters, such opinion or opinions, dated such Closing Date, with respect to such matters as the Representatives may require, and the Company and the Selling Shareholders shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (k) The Representatives shall have received one or more opinions of the ~~Minister~~ Selling Shareholders’ local counsels, dated such Closing Date, in form and substance satisfactory to the Representatives. (l) The Representatives shall have received an opinion from White & Case LLP, counsel for the Depositary, in form and substance satisfactory to the Representatives. (m) The Company shall have furnished or caused to be furnished to the Representatives certificates of ~~Finance~~ executive and principal financial or accounting officers of the ~~Province~~Company, ~~the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province~~ dated such Closing Date, satisfactory to the Representatives, ~~dated the Closing Date,~~ in which such ~~Minister, Deputy Minister or other officer,~~ officers shall represent as ~~the case may be, to the best of his or her knowledge after reasonable investigation, shall state that~~ follows: (i) the representations and warranties of the ~~Province~~ Company in this Agreement are true and correct~~, that~~ ; the ~~Province~~ Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to ~~the~~ such Closing Date, ~~that~~ (ii) no stop order suspending the effectiveness of ~~the~~ any Registration Statement has been issued and no proceedings for that purpose have been instituted or or, to the best of their knowledge, are contemplated by the ~~SEC~~Commission, (iii) subsequent to the date of the most recent financial statements in the Registration Statement, the General Disclosure Package and the Final Prospectus, there has been no development or event having a Material Adverse Effect, or any development or event involving a prospective change that is reasonably likely to have a Material Adverse Effect except as set forth in the General Disclosure Package or as described in such certificate, and (iv) such other matters as the Representatives may reasonably request. i(n) On or prior to the date hereof, the Representatives shall have received lock-up letters from each of the directors, executive officers and existing shareholders of the Company (a list of which is set forth in Schedule D), each substantially in the form and substance set forth in Exhibit C-1 for the non-DCM and Sequoia Entities and Exhibit C-2 for the DCM and Sequoia Entities. (o) The ~~purchase~~ Company and ~~sale~~ the Depositary shall have executed and delivered the Deposit Agreement and the Deposit Agreement shall be in full force and effect and the Company and the Depositary shall have taken all action necessary to permit the deposit of the Offered Shares and the issuance of the Offered Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New YorkDeposit Agreement. j(p) The ~~Province~~ Depositary shall have furnished or caused to be furnished to the ~~Underwriters~~ Representatives at such Closing Date, certificates satisfactory to the Representatives evidencing the deposit with it of the Offered Shares being so deposited against issuance of the Offered Securities to be delivered by the Company at such Closing Date, and the execution, countersignature (if applicable), issuance and delivery of such Offered Securities pursuant to ~~counsel for~~ the ~~Underwriters~~ Deposit Agreement and such ~~further certificates and documents~~ other matters related thereto as the Representatives ~~and such counsel~~ may reasonably request. k(q) ~~Subsequent to the execution of this Agreement and prior to the Closing Date, there~~ FINRA shall not have ~~occurred~~ raised any ~~downgrading~~objection with respect to the fairness or reasonableness of the underwriting or other arrangements of the transactions contemplated hereunder. (r) No Issuer Free Writing Prospectus or amendment or supplement to the Registration Statement, ~~nor~~ the ADS Registration Statement or the Final Prospectus shall ~~any notice~~ have been ~~given~~ filed to which the Representatives shall have objected in writing. (s) The Offered Securities shall have been approved to be listed on the NYSE. (t) Each Selling Shareholder shall have delivered to the Representatives a Power of ~~any intended or potential downgrading or~~ Attorney and a Custody Agreement, each of ~~any placing on credit watch with negative implications,~~ which duly executed and in ~~the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters~~ form and ~~documents will be in compliance with the provisions hereof only if they are reasonably~~ substance satisfactory to the Representatives. (u) The Representative shall have received a certificate, dated such Closing Date, of an Attorney-in-Fact of each Selling Shareholder in which the Attorney-in-Fact shall state that: the representations and warranties of such Selling Shareholder in this Agreement are true and correct as of such Closing Date; and such Selling Shareholder has complied with all agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to such Closing Date. (v) The Representatives shall have received from the Custodian a United States Treasury Department Form W-9 or the applicable Form W-8 (or other applicable form or statement specified by the United States Treasury Department regulations in lieu thereof) properly completed and executed by each Selling Shareholder. The ~~Province~~ Company and the Selling Shareholders will furnish the ~~Underwriters~~ Representatives with such conformed copies of such opinions, certificates, letters and documents as the Representatives may reasonably request. If any ~~of the above conditions~~ condition specified in this Section shall not have been fulfilled when and as ~~reasonably contemplated herein~~required to be fulfilled, this ~~Agreement and all~~ Agreement, or, in the case of any condition to the purchase of Optional Securities on an Optional Closing Date which is after the First Closing Date, the obligations of the several Underwriters ~~hereunder may~~ to purchase the relevant Optional Securities shall be deemed terminated ~~with respect to Securities at, or~~ by the Company and the Selling Shareholders at any time at or prior ~~to,~~ to the First Closing Date by or such Optional Closing Date, as the ~~Representatives on behalf of the Underwriters~~case may be, unless as otherwise provided, and such termination shall be without ~~any~~ liability ~~on the part~~ of any ~~Underwriter to the Province or of the Province~~ party to any ~~Underwriter,~~ other party except as provided in Section ~~6, Section 10 and Section 13~~ 11 hereof. ~~Notice~~ Notwithstanding the immediately preceding paragraph, the Representatives may in their sole discretion waive on behalf of ~~such cancellation shall be given as soon as practicable~~ the Underwriters compliance with any conditions to the obligations of the Underwriters hereunder, whether in ~~accordance with Section 14~~ respect of ~~this Agreement~~an Optional Closing Date or otherwise.

Appears in 1 contract

Samples: Underwriting Agreement (Vipshop Holdings LTD)

Conditions of the Obligations of the Underwriters. The ~~respective~~ several obligations of the ~~several~~ Underwriters to purchase and pay for the ~~Securities~~ Notes will be subject to the accuracy of the representations and warranties ~~on the part of the Province~~ made herein~~, to the accuracy of the statements of the representatives of the Province made pursuant to the provisions hereof~~, to the performance by the ~~Province~~ Depositor and Verizon Wireless of ~~its~~ their obligations ~~hereunder and with regard to the Securities~~ hereunder, and to the following additional conditions precedent: (a) ~~Prior~~ On the Closing Date, each of the Transaction Documents shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Owner Trustee and the Indenture Trustee shall have received a fully conformed copy of the Notes and Certificates, and the Notes shall have been duly executed and delivered by the Trust and duly authenticated by the Indenture Trustee. The Transaction Documents shall be substantially in the forms heretofore provided to the Representatives. (b) On or before the Closing Date, the Underwriters shall have received the Accountant’s Due Diligence Report and letters, dated as of the date of the Preliminary Prospectus and Prospectus, respectively, of the Accounting Firm, substantially in the form of the drafts to which the Representatives have agreed previously and otherwise substantially in form and substance reasonably satisfactory to the Underwriters and counsel to the Underwriters. (c) The Prospectus and any supplements thereto shall have been filed (if required) with the Commission in accordance with the Rules and Regulations; and, before the Closing Date, no stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Province~~ Depositor or the ~~Representatives~~Underwriters, shall be contemplated by the ~~SEC; and each Issuer Free Writing Prospectus, to~~ Commission or by any authority administering any state securities or blue sky law. (d) Since the ~~extent required by Rule 433 under~~ respective dates as of which information is given in the ~~Securities Act, shall have been filed with the SEC under the Securities Act;~~ Preliminary Prospectus and the ~~Final~~ Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this Agreement. b) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have ~~occurred~~ been (i) any material adverse change in the ~~financial~~business, ~~economic~~ business prospects, properties, financial condition, or ~~political condition~~ results of operations of Verizon Wireless and its subsidiaries, including the ~~Province from that~~ Depositor and the Trust, taken as a whole, or (ii) any development involving a prospective material adverse change in or affecting the Receivables or the servicing or origination business of Verizon Wireless, in each case other than as set forth or contemplated in the ~~Registration Statement, the Time of Sale Information~~ Preliminary Prospectus and the ~~Final~~ Prospectus; and the Underwriters shall have received, on the Closing Date, a certificate dated the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth in the first clause of this Section 9(b). c(e) The Underwriters shall have received an opinion or opinions of in-house counsel to the ~~Attorney General~~ Depositor and Verizon Wireless, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (f) The Underwriters shall have received an opinion or opinions of Xxxxxx, Xxxxx & Xxxxxxx LLP, special counsel to the ~~Province~~Depositor, Verizon Wireless and the ~~Deputy Attorney General of the Province~~Trust, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory addressed to the Representatives, ~~as Canadian~~ dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the ~~Province~~Underwriters, addressing (i) corporate, enforceability and securities law matters, (ii) the enforceability of the Notes, (iii) certain true sale and nonconsolidation bankruptcy matters, (iv) bankruptcy proceedings of Verizon Wireless with respect to preference matters, (v) bankruptcy proceedings of Verizon Wireless and the impact of Annual Upgrade Offers, (vi) certain security interest matters and (vii) certain United States federal income tax matters. (g) The Underwriters shall have received one or more negative assurance letters of Xxxxxx, Xxxxx & Xxxxxxx LLP, counsel to the Trust, the Depositor and Verizon Wireless, addressed to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (h) The Underwriters shall have received an opinion or opinions, addressed to the Underwriters, of Xxxxxxxx, Xxxxxx & Xxxxxx, P.A., counsel to the Indenture Trustee, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (i) The Underwriters shall have received an opinion or opinions, addressed to the Underwriters, of Xxxxxx Xxxxx LLP, counsel to the Owner Trustee, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (j) The Underwriters shall have received an opinion or opinions, addressed to the Underwriters, of Xxxxxx Xxxxx XXX, special Delaware counsel for the Trust, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (k) The Underwriters shall have received an opinion or opinions, addressed to the Underwriters, of Xxxxxx Xxxxx XXX, special Delaware counsel to the Depositor, dated the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (l) The Underwriters shall have received an opinion or opinions, addressed to the Underwriters, of Xxxxxx Xxxxx XXX, special Delaware counsel to the Master Trust, dated as of the Closing Date and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (m) The Underwriters shall have received an opinion or opinions, addressed to the Underwriters, of Bass, Xxxxx & Xxxx PLC, counsel to the Asset Representations Reviewer, dated the Closing Date, and satisfactory in form and substance to the Representatives and counsel to the Underwriters. (n) The Underwriters shall have received one or more negative assurance letters of Xxxxx Xxxxx LLP, counsel for the Underwriters, addressed to the Underwriters. (o) The Underwriters shall have received copies of each opinion of counsel delivered to any rating agency, together with a letter addressed to the Underwriters, dated the Closing Date, to the effect that ~~under~~ the ~~laws~~ Representatives and the Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securitiesits date. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. dp) The Underwriters shall have received ~~an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada,~~ certificates dated the Closing ~~Date, as to the matters specified in subdivisions (i) through (vii)~~ Date of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) any one of the ~~Minister of Finance~~ President, Chief Financial Officer, any Vice President, the Controller, the Treasurer or Assistant Treasurer of the ~~Province, the Deputy Minister of Finance of the Province or another~~ Depositor and Verizon Wireless in which such officer ~~of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion~~ shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion, to the effect that: (i) The Securities are exempted securities under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that : (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of made by such entity contained in the ~~Province in~~ Transaction Documents and this Agreement are true and ~~correct~~correct in all material respects (except to the extent any such representation or warranty is already qualified by materiality, in which case such representation or warranty is true and correct in all respects), that ~~the Province~~ such party has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at under such agreements on or ~~prior~~ before the Closing Date in all material respects (except to the extent any such agreement or condition is already qualified by materiality, in which case such agreement or condition has been complied with or satisfied, as applicable, in all respects), (B) since the date of this Agreement there has not occurred (i) any material adverse change in the business, business prospects, properties, financial condition or results of operations of the Trust, the Depositor or Verizon Wireless or (ii) to the best of such officer’s knowledge, any development involving a prospective material adverse change in or affecting the Receivables or the servicing or origination business of Verizon Wireless, in each case except as disclosed to the Representatives in writing and (C) there are no actions, proceedings or investigations to which the Depositor or Verizon Wireless is a party or that are, to such party’s knowledge after due inquiry, threatened before any court, administrative agency or other tribunal having jurisdiction over Verizon Wireless or the Depositor, (i) asserting the invalidity of this Agreement, any Transaction Document or the Notes, (ii) seeking to prevent the issuance of the Notes or the consummation of any of the transactions contemplated by this Agreement or the Transaction Documents, (iii) which would reasonably be expected to have a Material Adverse Effect or (iv) seeking adversely to affect the federal income tax attributes of the Notes as described in the Prospectus or the Preliminary Prospectus under the heading “U.S. Federal Income Tax Consequences.” (q) The Representatives shall have received evidence satisfactory to the Representatives and counsel to the Underwriters that, on or before the Closing Date, ~~that no stop order suspending~~ UCC-1 financing statements, have been or are being filed in all applicable governmental offices reflecting (A) the ~~effectiveness~~ transfer of the ~~Registration Statement has been issued~~ interest of the Originators in the related Receivables, and ~~no proceedings for that purpose~~ the proceeds thereof to the Depositor pursuant to the Originator Receivables Transfer Agreement, (B) the transfer of the interest of the Master Trust in the related Receivables and the proceeds thereof to the Depositor pursuant to the Master Trust Receivables Transfer Agreement, (C) the transfer of the interest of the Depositor in the Originator Receivables Transfer Agreement, the Master Trust Receivables Transfer Agreement, the Receivables and the proceeds thereof to the Trust pursuant to the Transfer and Servicing Agreement, and (D) the grant by the Trust to the Indenture Trustee under the Indenture of a security interest in the interest of the Trust in the Transfer and Servicing Agreement, the Receivables and the proceeds thereof. (r) The Class A Notes shall have been ~~instituted~~ rated at least AAA sf by Fitch Ratings, Inc. (“Fitch”) and at least AAA (sf) by S&P Global Ratings (“S&P”). The Class B Notes shall have been rated at least AA sf by Fitch and at least AA+ (sf) by S&P. The Class C Notes shall have been rated at least A sf by Fitch and at least A+ (sf) by S&P. (s) The Underwriters shall have received, from each of Verizon Wireless, Verizon, the Originators and the Depositor, a certificate executed by a secretary or ~~are contemplated by~~ assistant secretary thereof (or the ~~SEC~~equivalent) to which shall be attached certified copies of the: (i) formation and governing documents, (ii) applicable resolutions and (iii) designation of incumbency of each such entity. The Underwriters shall have received, from the Trust, a certified copy of the certificate of formation and an executed copy of the trust agreement evidencing formation of the trust. i(t) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province Representatives shall have ~~furnished~~ received evidence of any required Lien releases to be filed or recorded (immediately following the Closing Date) with respect to the ~~Underwriters~~ Permitted Liens affecting the Receivables from all applicable creditors of Verizon Wireless, in form and substance satisfactory to ~~counsel for the Underwriters such further certificates and documents as~~ the Representatives and ~~such~~ counsel ~~reasonably request~~to the Underwriters. k(u) ~~Subsequent~~ All representations and warranties made by or on behalf of Verizon Wireless and the Depositor in the Transaction Documents to which each is a party are true and correct in all material respects as of the ~~execution of this Agreement and prior to~~ Closing Date. (v) The Representatives shall have received a certificate, dated the Closing Date, ~~there shall not have occurred~~ signed by an authorized officer or any ~~downgrading, nor shall any notice have been given~~ Vice President of ~~any intended or potential downgrading or of any placing on credit watch with negative implications~~the Indenture Trustee, in which such officer shall state that the ~~ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency~~ information contained in the ~~United States. All such opinions, certificates, letters~~ Form T-1 for the Indenture Trustee is true and ~~documents will be in compliance~~ accurate as of its filing with the ~~provisions hereof only if they are reasonably satisfactory~~ Commission. The Depositor will provide or cause to be provided to the ~~Representatives. The Province will furnish the~~ Underwriters ~~with such~~ conformed copies of such opinions, certificates, letters and documents as the ~~Representatives~~ Underwriters or counsel to the Underwriters reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.

Appears in 1 contract

Samples: Underwriting Agreement (Verizon Owner Trust 2020-C)

Conditions of the Obligations of the Underwriters. The ~~respective~~ Underwriters' obligations ~~of the several Underwriters to purchase and pay for the Securities will be~~ hereunder are subject to the ~~accuracy~~ following conditions: (a) All filings required by Rule 424 and Rule 430A of the ~~representations~~ Rules and ~~warranties on the part of the Province herein,~~ Regulations to ~~the accuracy of the statements of the representatives of the Province~~ be made ~~pursuant to the provisions hereof, to the performance~~ by the ~~Province of its obligations hereunder and with regard to the Securities and to the following additional conditions precedent: a) Prior~~ Company prior to the Closing ~~Date, no~~ shall have been made by the Company. (i) No stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement shall have been issued and no proceedings for that purpose shall ~~have been instituted or~~be pending or threatened by the Commission, to (ii) no order suspending the ~~knowledge~~ effectiveness of the ~~Province~~ Registration Statement or the ~~Representatives,~~ qualification or registration of the Securities under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by the ~~SEC; and each Issuer Free Writing Prospectus~~Commission or the authorities of any such jurisdiction, to (iii) any request for additional information on the ~~extent required by Rule 433 under~~ part of the ~~Securities Act,~~ staff of the Commission or any such authorities shall have been ~~filed~~ complied with to the ~~SEC under~~ satisfaction of the ~~Securities Act;~~ staff of the Commission or such authorities, and (iv) after the ~~Final~~ date hereof no amendment or supplement to the Registration Statement or the Prospectus shall have been filed ~~with~~ unless a copy thereof was first submitted to the ~~SEC pursuant to Rule 424~~ Underwriters and the Underwriters did not ~~later than 5:00 p.m. New York City time, on the second business day following the date of this Agreement~~object thereto in good faith. b(c) Subsequent to the execution and delivery of this Underwriting Agreement and prior to the Closing Date, there shall not have occurred any downgrading in the rating accorded the Securities or any other debt securities of the Company by any Rating Agency nor shall any notice have been given to the Company of (i) any intended or potential downgrading by any Rating Agency in such securities, or (ii) any review or possible change by any Rating Agency that does not indicate a stable, positive or improving rating accorded such securities. (d) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there shall not have been a material adverse change in the ~~financial~~general affairs, ~~economic~~ business, business prospects, properties, management, condition (financial or ~~political condition~~ otherwise) or results of operations of the ~~Province~~ Company and its subsidiaries, taken as a whole, whether or not arising from ~~that~~ transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus, (ii) there shall not have been any change on a consolidated basis, in the equity capitalization, short-term debt or long-term debt of the Company, or any adverse change in the rating assigned to any securities of the Company, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus, and (iii) neither the Company nor any of its subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration ~~Statement, the Time of Sale Information~~ Statement and the ~~Final~~ Prospectus; , if in the judgment of the Underwriters any such development makes it impracticable or inadvisable to offer or deliver the Securities on the terms and in the manner contemplated in the Prospectus. (e) Since the respective dates as of which information is given in the Registration Statement and the ~~Underwriters~~ Prospectus, there shall have ~~received~~been no litigation or other proceeding instituted against the Company or any of its subsidiaries or any of their respective officers or directors in their capacities as such, on before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceeding an unfavorable ruling, decision or finding would materially and adversely affect the business, properties, business prospects, condition (financial or otherwise) or results of operations of the Company and its subsidiaries taken as a whole. (f) Each of the representations and warranties of the Company contained herein shall be true and correct in all material respects at the Closing Date, ~~a certificate~~ as if made at the Closing Date, and all covenants and agreements contained herein to be performed on the part of the Company and all conditions contained herein to be fulfilled or complied with by the Company at or prior to the Closing Date, shall have been duly performed, fulfilled or complied with. (g) The Underwriters shall have received the opinion of Goodxxx, Xxocter & Hoar XXX, counsel to the Company, dated the Closing ~~Date and signed by the Minister of Finance of the Province~~Date, ~~the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives~~ to the effect set forth in ~~the first clause of this Section 9(b).~~EXHIBIT A. c(h) The Underwriters shall have received an the opinion of ~~the Attorney General of the Province~~Goodxxx, ~~the Deputy Attorney General of the Province~~Xxocter & Hoar XXX, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian tax counsel to the ~~Province~~Company, dated the Closing Date, to the effect that, subject to the assumptions and qualifications historically included by such counsel in opinions rendered in recent public offerings by Bay Apartment Communities, Inc. and subject to changes in applicable laws and regulations and judicial and regulatory developments, commencing with the taxable year ending December 31, 1994, the form of organization of the Company and its operations are such as to enable the Company to qualify as a "real estate investment trust" under the applicable provisions of the Code. (i) The Underwriters shall have received the opinion of Cox, Xxstle & Nichxxxxx XXX, counsel for the Company, dated the Closing Date, to the effect that ~~under~~ to the ~~laws~~ best of ~~British Columbia~~ their knowledge statements relating to the Communities and ~~Canada~~ the Current Development Communities (as defined in the Prospectus) and ~~subject to~~ tax-exempt bond financing in the Prospectus (but excluding the statistical and financial data, physical condition and construction status of such ~~qualifications~~ communities included therein) are materially fair and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securitiesaccurate. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. dj) The Underwriters shall have received an ~~opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada~~opinion, dated the Closing Date, ~~as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9~~from O'Melveny & Myerx XXX, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the ~~Province~~Underwriters, is with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be satisfactory in all respects to the Underwriters. (k) Concurrently with the execution and delivery of this Agreement, the Accountants shall have furnished to the Underwriters a letter, dated the date of its delivery, addressed to the Underwriters and in form and substance satisfactory to ~~them~~ the Underwriters, confirming that they are independent accountants with respect to the Company as required by the Act and ~~they believe that~~ the ~~Representatives are justified~~ 1933 Act Rules and Regulations and with respect to the financial and other statistical and numerical information contained in ~~relying thereon. e) The Underwriters shall have received~~ the ~~opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated~~ Registration Statement or incorporated by reference therein. At the Closing Date, ~~subject~~ the Accountants shall have furnished to ~~such qualifications and based upon such assumptions as are customary~~ the Underwriters a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the ~~United States~~ letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in ~~respect~~ the prior sentence to a date (specified in the letter) not more than five days prior to the Closing Date which would require any change in their letter dated the date hereof if it were required to be dated and delivered at the Closing Date. (l) On the Closing Date there shall have been furnished to the Underwriters an accurate certificate, dated the date of ~~such opinion~~its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to the Underwriters, to the effect that: (i) ~~The Securities are exempted securities under~~ No stop order suspending the ~~Trust Indenture Act~~ effectiveness of ~~1939~~the Registration Statement has been issued and, ~~as amended~~ to the best of such officers' information and belief, no proceeding for that purpose is pending or threatened by the Commission; (ii) No order suspending the ~~“Trust Indenture Act”), and no~~ effectiveness of the Registration Statement or the qualification ~~of an indenture in respect~~ or registration of the Securities under the ~~Trust Indenture Act~~ securities or Blue Sky laws of any jurisdiction is ~~required~~ in effect and, to the best of such officers' information and belief, no proceeding for such purpose is pending before or threatened or contemplated by the ~~issuance, sale and delivery~~ Commission or the authorities of ~~the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as~~ any such ~~statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein.~~jurisdiction; (iii) ~~The statements in~~ Any request for additional information on the ~~Time~~ part of ~~Sale Information, and Final Prospectus under “Description~~ the staff of ~~Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”,~~ the Commission or any such authorities has been complied with to the ~~extent that they constitute summaries~~ satisfaction of ~~legal matters referred to therein, fairly summarize in all material respects~~ the ~~legal matters referred to therein.~~staff of the Commission or such authorities; (iv) ~~Based upon~~ Each signer of such ~~counsel’s participation in conferences with representatives of~~ certificate has carefully examined the ~~Province, counsel for~~ Registration Statement and the ~~Province~~ Prospectus (including any documents filed under the Exchange Act and ~~their examination of specified documents, no facts have come~~ deemed to ~~such counsel’s attention which caused such counsel to believe that~~ be incorporated by reference into the Prospectus) and (A) ~~the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment),~~ as of the date of ~~this Agreement~~such certificate, ~~contained an untrue statement of a~~ such documents, taken together, are true and correct in all material ~~fact or omitted~~ respects and do not omit to state a material fact required to be stated therein or necessary in order to make the statements therein not ~~misleading;~~ untrue or misleading and (B) no event has occurred as a result of which it is necessary to amend or supplement the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, contained an untrue statement of a material fact or omitted to state a material fact necessary Prospectus in order to make the statements ~~therein,~~ therein not untrue or misleading in any material respect and there has been no document required to be filed under the ~~light of~~ Exchange Act and the ~~circumstances under which they were made, not misleading; or (C)~~ Exchange Act Rules and Regulations that upon such filing would be deemed to be incorporated by reference into the ~~Final~~ Prospectus ~~(other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel~~ that has not been ~~requested to comment), as~~ so filed; (v) Each of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of the ~~Province~~ Company contained in this Agreement ~~are~~ were, when originally made, and are, at the time such certificate is delivered, true and ~~correct, that~~ correct in all material respects; (vi) Each of the ~~Province has complied with all agreements and satisfied all conditions on its part~~ covenants required to be performed ~~or satisfied at~~ by the Company herein on or prior to the delivery of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the date of such certificate has been duly, timely and fully complied with; and (vii) Subsequent to the execution and delivery of the Underwriting Agreement and through the date of such certificate, there has not occurred any downgrading in the rating accorded the Securities or any other debt securities of the Company by any Rating Agency nor has any notice been given to the Company of (A) any intended or potential downgrading by any Rating Agency in such securities, or (B) any review or possible change by any Rating Agency that does not indicate a stable, positive or improving rating accorded such securities. (m) The Securities shall be qualified for sale in the jurisdictions designated pursuant to Section 5(g), each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date~~, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the SEC~~. i(n) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province Company shall have furnished to the Underwriters ~~and~~ such certificates, in addition to ~~counsel for~~ those specifically mentioned herein, as the Underwriters ~~such further certificates~~ may have reasonably requested as to the accuracy and completeness at the Closing Date of any statement in the Registration Statement or the Prospectus or any documents filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus, as to the ~~Representatives~~ accuracy at the Closing Date of the representations and ~~such counsel reasonably request~~warranties of the Company herein, as to the performance by the Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations of the Underwriters hereunder. k(o) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to the ~~Representatives~~Underwriters and their counsel. The ~~Province~~ Company will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and other documents as the ~~Representatives~~ Underwriters shall reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.

Appears in 1 contract

Samples: Underwriting Agreement (Avalon Bay Communities Inc)

Conditions of the Obligations of the Underwriters. ~~The respective~~ In addition to the execution and delivery of the Price Determination Agreement, the obligations of each Underwriter hereunder are subject to the following conditions and the obligations of the ~~several Underwriters to purchase and pay for the Securities will be~~ Selling Stockholders are subject to the ~~accuracy~~ applicable clauses of paragraphs (f) and (h): (a) Notification that the Registration Statement has become effective shall be received by the Representatives not later than 5:00 p.m., New York City time, on the date of this Agreement or at such later date and time as shall be consented to in writing by the Representatives and all filings required by Rule 424 of the ~~representations~~ Rules and warranties on the part of the Province herein, to the accuracy of the statements of the representatives of the Province made pursuant to the provisions hereof, to the performance by the Province of its obligations hereunder Regulations and ~~with regard to the Securities and to the following additional conditions precedent:~~Rule 430A shall have been made. a(i) ~~Prior to the Closing Date, no~~ No stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement shall have been issued and no proceedings for that purpose shall ~~have been instituted or~~be pending or threatened by the Commission, to (ii) no order suspending the ~~knowledge~~ effectiveness of the ~~Province~~ Registration Statement or the ~~Representatives,~~ qualification or registration of the Shares under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by the ~~SEC; and each Issuer Free Writing Prospectus~~Commission or the authorities of any such jurisdiction, to (iii) any request for additional information on the ~~extent required by Rule 433 under~~ part of the ~~Securities Act,~~ staff of the Commission or any such authorities shall have been ~~filed~~ complied with to the ~~SEC under~~ satisfaction of the ~~Securities Act;~~ staff of the Commission or such authorities and (iv) after the ~~Final~~ date hereof no amendment or supplement to the Registration Statement or the Prospectus shall have been filed ~~with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this Agreement. b) Subsequent~~ unless a copy thereof was first submitted to the ~~execution of this Agreement~~ Representatives and ~~prior to~~ the Representatives did not object thereto in good faith, and the Representatives shall have received certificates, dated the Closing Date, there shall not have occurred any material adverse change in the financial, economic or political condition of the Province from that set forth in the Registration Statement, the Time of Sale Information Date and the ~~Final Prospectus; and the Underwriters shall have received, on the Closing Date, a certificate dated the~~ Option Closing Date and signed by the ~~Minister of Finance~~ Chief Executive Officer or the Chairman of the ~~Province, the Deputy Minister~~ Board of ~~Finance~~ Directors of the ~~Province or another officer~~ Company and the Chief Financial Officer of the ~~Ministry~~ Company (who may, as to proceedings threatened, rely upon the best of ~~Finance satisfactory to the Representatives~~ their information and belief), to the effect of clauses (i), (ii) and (iii). (c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there shall not have been a material adverse change or development involving a prospective material adverse change, in the general affairs, business, business prospects, earnings, position, value, properties, management, condition (financial or otherwise), operations or results of operations of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus, (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the ~~first clause~~ Registration Statement and the Prospectus, if in the judgment of ~~this Section 9(b). c~~the Representatives any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price, (iii) ~~The Underwriters~~ there shall have ~~received an opinion~~ been no transactions, not in the ordinary course of business, entered into by the Company or any of its Subsidiaries and no liabilities or obligations incurred by the Company or any of its Subsidiaries, in each case from the latest date as of which the financial condition of the ~~Attorney General of~~ Company and its Subsidiaries is set forth in the ~~Province~~Registration Statement and the Prospectus, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory which are materially adverse to the ~~Representatives~~Company and its Subsidiaries, taken as ~~Canadian counsel to~~ a whole, (iv) neither the ~~Province, dated~~ Company nor any of its Subsidiaries shall have issued any securities (other than the ~~Closing Date, to the effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia~~ Securities) or declared or paid any dividend or made any distribution in respect of ~~an opinion~~ its capital stock of ~~this type:~~ any class, debt (ilong term or short term) ~~The Province has full power~~ or, except in the ordinary course of business, liabilities or obligations of the Company or any of its Subsidiaries (contingent or otherwise), except as set forth in the Registration Statement and ~~authority to execute~~ Prospectus and ~~deliver this Agreement~~ (v) no material amount of the assets of the Company or any of its Subsidiaries shall have been pledged, mortgaged or otherwise encumbered, except as set forth in the Registration Statement and ~~to issue and sell the Securities~~Prospectus. (iid) ~~This Agreement~~ Since the respective dates as of which information is given in the Registration Statement and the ~~Fiscal Agency Agreement~~ Prospectus, there shall have been ~~duly authorized~~no litigation or other proceeding instituted against the Company or any of its Subsidiaries or any of their respective officers or directors in their capacities as such, ~~executed~~ before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceeding an unfavorable ruling, decision or finding would materially and ~~delivered by~~ adversely affect the ~~Province and each is a valid and legally binding agreement~~ general affairs, business, business prospects, earnings, position, value, properties, management, condition (financial or otherwise), operations or results of operations, of the ~~Province, except~~ Company and its Subsidiaries taken as ~~rights to indemnity and contribution hereunder may be limited under applicable law~~a whole. (~~iii~~e) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations Each of the ~~Province in accordance with their respective terms~~ representations and ~~will rank equally and ratably with all other unsecured and unsubordinated indebtedness~~ warranties of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency AgreementCompany, the ~~issuance of the Securities~~ Selling Stockholders and ~~the performance by the Province of its obligations hereunder~~ Spiex xxxtained herein shall be true and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize correct in all material respects at the ~~legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx~~Closing Date and, ~~Hxxxxx & Harcourt LLP, Canadian counsel~~ with respect to the ~~Underwriters~~Option Shares, ~~given in respect~~ the representations and warranties of the ~~laws of British Columbia~~ Company contained herein shall be true and ~~Canada, dated~~ correct in all material respects at the Option Closing Date, as if made at the Closing Date and, with respect to the ~~matters specified~~ Company and the Option Shares, at the Option Closing Date, and all covenants and agreements contained herein to be performed by the Company and all conditions contained herein to be fulfilled or complied with by the Company at or prior to the Closing Date and, with respect to the covenants, agreements and conditions relating to the Company in ~~subdivisions~~ connection with the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with. (if) ~~through (vii) of paragraph (c) of this Section 9~~The Representatives and, ~~subject~~ with respect to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the ~~Minister of Finance of the Province~~Firm Shares, the ~~Deputy Minister of Finance of~~ Selling Stockholders, shall have received opinions, each dated the ~~Province or another officer of the Ministry of Finance of the Province satisfactory~~ Closing Date and, with respect to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriateOption Shares, the ~~opinion of~~ Option Closing Date, satisfactory in form and substance to counsel for the ~~Attorney General,~~ Underwriters and the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the RepresentativesSelling Stockholders, as the case may be, ~~Canadian~~ from Rogexx & Xardxx, xxunsel to the Company, to the effect set forth in Exhibit E and from Fried, Frank, Harris, Shrixxx & Xacoxxxx, xxunsel to the Selling Stockholders, to the effect set forth in Exhibit F. (g) The Representatives shall have received an opinion, dated the Closing Date and the Option Closing Date, from Kaye, Xxholer, Fierman, Hays & Xandler, LLP, counsel to the ~~Province~~Underwriters, is with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be satisfactory in all respects to the Representatives. (h) On the date of the Prospectus, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, addressed to the Representatives and in form and substance satisfactory to ~~them~~ the Representatives, confirming that they are independent accountants with respect to the Company as required by the Act and ~~they believe that~~ the Rules and Regulations and with respect to the financial and other statistical and numerical information contained in the Registration Statement or incorporated by reference therein. At the Closing Date and, as to the Option Shares, the Option Closing Date, the Accountants shall have furnished to the Representatives ~~are justified~~ a letter, dated the date of its delivery, which shall confirm, on the basis of a review in ~~relying thereon. e~~accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) ~~The Underwriters~~ not more than five days prior to the Closing Date and the Option Closing Date which would require any change in their letter dated the date of the Prospectus, if it were required to be dated and delivered at the Closing Date and the Option Closing Date. At the Effective Date, the Selling Stockholders shall have received an "agreed upon procedures" letter from the ~~opinion~~ Company's independent public accountants in customary form and covering such matters of ~~Sxxxxxxx & Sterling LLP~~the type customarily covered by such letters in connection with public offerings of securities as the Selling Stockholders shall reasonably request, ~~United States counsel for~~ dated within five days of the ~~Province~~date of effectiveness or supplements, as the case may be, addressed to the Selling Stockholders and with an appropriate bring down as of the Closing Date. (i) At the Closing Date and, as to the Option Shares, the Option Closing Date, there shall be furnished to the Representatives an accurate certificate, dated the ~~Closing Date~~date of its delivery, ~~subject~~ signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to ~~such qualifications and based upon such assumptions as are customary in~~ the ~~United States in respect of such opinion~~Representatives, to the effect that: (i) ~~The Securities are exempted securities~~ Each signer of such certificate has carefully examined the Registration Statement and the Prospectus (including any documents filed under the ~~Trust Indenture~~ Exchange Act ~~of 1939, as amended (~~and deemed to be incorporated by reference into the ~~“Trust Indenture Act”~~Prospectus), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) ~~the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment),~~ as of the date of ~~this Agreement~~such certificate, ~~contained an untrue statement of a~~ such documents are true and correct in all material ~~fact or omitted~~ respects and do not omit to state a material fact required to be stated therein or necessary in order to make the statements therein not misleading; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, contained an untrue statement of a material fact or omitted to state a material fact necessary misleading in ~~order to make the statements therein, in the~~ light of the circumstances under which they were made, ~~not misleading; or~~ and (CB) since the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Effective Date, ~~contained~~ no event has occurred as a result of which it is necessary to amend or ~~contains an untrue statement of a material fact or omitted or omits to state a material fact necessary~~ supplement the Prospectus in order to make the statements ~~therein~~therein not untrue or misleading in any material respect, in and there has been no document required to be filed under the ~~light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement~~ Exchange Act and the ~~Final~~ Exchange Act Rules and Regulations that upon such filing would be deemed to be incorporated by reference into the Prospectus ~~(other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel~~ that has not been ~~requested to comment~~so filed. (ii) ~~appear on their face to be appropriately responsive~~ Each of the representations and warranties of the Company contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material ~~respects~~ respects. (iii) Each of the covenants required herein to be performed by the Company on or prior to the ~~requirements~~ date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the ~~Securities Act~~ Company on or prior to the delivery of such certificate has been duly, timely and ~~the applicable rules and regulations of the SEC thereunder~~fully complied with. f(j) ~~The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated~~ At the Closing Date, ~~subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion,~~ there shall have been furnished to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received Representatives an ~~opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters~~accurate certificate, dated the ~~Closing Date~~date of its delivery, ~~as to the matters specified in subdivisions (i), and (iv) (but only as~~ signed by Spiex xx behalf of the ~~date of this Agreement as to clause (A)) of paragraph (e) of this Section 9~~Selling Stockholders, ~~subject to such qualifications~~ in form and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province substance satisfactory to the Representatives, ~~dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be,~~ to the ~~best of his or her knowledge after reasonable investigation, shall state~~ effect that the representations and warranties of the ~~Province in this Agreement~~ Selling Stockholders and Spiex xxxtained herein are true and ~~correct~~correct in all material respects on and as of the date of such certificate as if made on and as of the date of such certificate, ~~that~~ and each of the ~~Province has complied with all agreements~~ covenants and ~~satisfied all~~ conditions ~~on its part~~ required herein to be performed or ~~satisfied at~~ complied with by the Selling Stockholders and Spiex xx or prior to the date of such certificate has been duly, timely and fully performed or complied with. (k) On or prior to the Closing Date, ~~that no stop order suspending~~ the ~~effectiveness of~~ Representatives shall have received the ~~Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the SEC~~executed agreements referred to in Section 5(m). i(l) The ~~purchase and~~ Shares shall be qualified for sale ~~of the Securities~~ in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province shall have furnished to the Underwriters and to counsel for the Underwriters such ~~further certificates and documents~~ states as the Representatives ~~and such counsel~~ may reasonably request, each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date and the Option Closing Date. k(m) ~~Subsequent to the execution of this Agreement and prior~~ Prior to the Closing Date, ~~there~~ the Shares shall ~~not have occurred any downgrading, nor shall any notice~~ have been ~~given~~ duly authorized for listing by the Nasdaq National Market System upon official notice of ~~any intended or potential downgrading or of any placing on credit watch with negative implications~~issuance. (n) The Company, the Selling Stockholders and Spiex xxxll have furnished to the Representatives such certificates, in ~~the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions~~addition to those specifically mentioned herein, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The Province will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representatives may have reasonably ~~request. If any of~~ requested as to the ~~above conditions shall not have been fulfilled as reasonably contemplated herein~~accuracy and completeness at the Closing Date and, ~~this Agreement and all obligations of the Underwriters hereunder may be terminated~~ with respect to ~~Securities at~~the Company and the Option Shares, the Option Closing Date of any statement in the Registration Statement or the Prospectus or any documents filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus, as to the accuracy at ~~any time prior to,~~ the Closing Date and, with respect to the Company, the Option Closing Date of the representations and warranties of the Company, the Selling Stockholders and Spiex xxxein, as to the performance by the ~~Representatives on behalf~~ Company, the Selling Stockholders and Spiex xx their respective obligations hereunder or as to the fulfillment of the ~~Underwriters, without any liability on the part of any Underwriter~~ conditions concurrent and precedent to the ~~Province or~~ obligations hereunder of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this AgreementRepresentatives.

Appears in 1 contract

Samples: Underwriting Agreement (Powerhouse Technologies Inc /De)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the ~~several~~ Underwriters ~~to purchase and pay for the Securities will be~~ hereunder are subject to the accuracy of the representations and warranties on the part of the Province herein, to the accuracy of the statements of the representatives of the Province made pursuant to the provisions hereof, to the performance by the Province of its obligations hereunder and with regard to the Securities and to the following ~~additional conditions precedent~~conditions: (a) ~~Prior to the Closing Date,~~ The Prospectus shall have been filed as required by Section 3(a) and (i) no ~~stop~~ order suspending the effectiveness of the Registration ~~Statement~~Statement or the qualification or registration of the Shares under the securities or blue sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by the Commission or the authorities of any such jurisdiction, ~~as amended from time to time,~~ (ii) any request for additional information on the part of the staff of the Commission or any such authorities shall have been ~~issued and no proceedings for that purpose shall have been instituted or,~~ complied with to the ~~knowledge~~ satisfaction of the ~~Province~~ staff of the Commission or such authorities, and (iii) after the date hereof no amendment or supplement to the Registration Statement or the Representatives, shall be contemplated by the SEC; and each Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act, shall have been filed with the SEC under the Securities Act; and the Final Prospectus shall have been filed ~~with~~ unless a copy thereof was first submitted to the ~~SEC pursuant to Rule 424~~ Underwriters and the Underwriters did not ~~later than 5:00 p.m. New York City time, on the second business day following the date of this Agreement~~object thereto. (b) ~~Subsequent to~~ Since the ~~execution~~ respective dates as of ~~this Agreement~~ which information is given in the Registration Statement and ~~prior to~~ the ~~Closing Date~~Prospectus, (i) there shall not have ~~occurred any~~ been a material adverse change in the ~~financial~~general affairs, ~~economic~~ business, business prospects, properties, management, condition (financial or ~~political condition~~ otherwise) or results of operations of REIT and the Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) neither the REIT nor any of the ~~Province~~ Subsidiaries shall have sustained any material loss or interference with its business or properties from ~~that~~ fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration ~~Statement, the Time of Sale Information~~ Statement and the ~~Final~~ Prospectus; , if in any case the judgment of the Underwriters any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters and at the Public Offering Price. (c) Since the respective dates as of which information is given in the Prospectus, there shall have been no litigation or other proceeding instituted against the REIT or any of the Subsidiaries or any of their respective officers or directors or trustees, as the case may be, in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceeding it is reasonably probable that an unfavorable ruling, decision or finding would have a Material Adverse Effect. (d) Each of the representations and warranties of the REIT and the Operating Partnership contained herein shall be true and correct in all material respects at the Closing Date and the Option Closing Date, as if made at the Closing Date and the Option Closing Date, and all covenants and agreements contained herein to be performed on the part of the REIT and the Operating Partnership and all conditions contained herein to be fulfilled or complied with by the REIT and the Operating Partnership at or prior to the Closing Date and the Option Closing Date, shall have been duly performed, fulfilled or complied with. (e) The Underwriters shall have ~~received~~received one or more opinions, ~~on the Closing Date, a certificate~~ dated the Closing Date and ~~signed by~~ the ~~Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance~~ Option Closing Date and satisfactory in form and substance to the ~~Representatives~~ Underwriters’ counsel, from Bxxxxxx Xxxxx Xxxxxxx & Ixxxxxxxx LLP, Maryland counsel to the REIT, to the effect set forth in Exhibit B. (f) The Underwriters shall have received one or more opinions, dated the ~~first clause~~ Closing Date and the Option Closing Date and satisfactory in form and substance to the Underwriters’ counsel, from Lxxxxx & Wxxxxxx LLP, special corporate and tax counsel to the REIT, (i) to the effect set forth in Exhibit C and (ii) concerning the tax matters set forth below: (i) Based on the facts, representations and assumptions set forth in the opinion, commencing with the REIT’s taxable year ending December 31, 1997 and continuing through the REIT’s taxable year ending December 31, 2003, the REIT has been organized and has operated in conformity with the requirements for qualification as a “real estate investment trust” under the Code, and its proposed method of ~~this~~ operation will enable the REIT to continue to meet the requirements for qualification and taxation as a real estate investment trust under the Code; (ii) The statements in the Prospectus Supplement under the caption “United States Federal Income Tax Considerations,” insofar as they purport to summarize certain provisions of the agreements, statutes, regulations and other legal matters referred to therein, are accurate summaries in all material respects; and (iii) The Operating Partnership is classified as a partnership for United States federal income tax purposes and not as (a) an association taxable as a corporation or (b) a “publicly traded partnership” taxable as a corporation under Section ~~9(b)~~7704(a) of the Code. c(g) The Underwriters shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Provinceopinion, dated the Closing Date and the Option Closing Date, from O’Melveny & Mxxxx LLP, Underwriters’ counsel, with respect to the ~~effect that under~~ Registration Statement, the ~~laws of British Columbia~~ Prospectus and ~~Canada and subject~~ this Agreement, which opinion shall be satisfactory in all respects to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the ~~Securities~~Underwriters. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. dh) The Underwriters shall have ~~received an opinion of Oxxxx~~received, ~~Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect~~ on each of the ~~laws of British Columbia~~ date hereof and ~~Canada, dated~~ the Closing Date and the Option Closing Date, ~~as to~~ a letter dated the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Provincedate hereof, the ~~Deputy Minister of Finance of~~ Closing Date or the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the RepresentativesOption Closing Date, as the case may be, ~~Canadian counsel~~ in form and substance reasonably satisfactory to the ~~Province~~Underwriters, is from Deloitte & Touche LLP, independent public accountants, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into the Registration Statement and the Prospectus; provided that the letter delivered on the Closing Date and the Option Closing Date shall use a “cut-off date” not earlier than two days before the delivery date. (i) At the Closing Date and at the Option Closing Date, there shall be furnished to the Underwriters an accurate certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the REIT on behalf of the REIT (a) itself and (b) in its capacity as general partner of the Operating Partnership, in form and substance satisfactory to ~~them and they believe that~~ the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinionUnderwriters, to the effect that: (i) The ~~Securities are exempted securities~~ Prospectus has been filed as required by Section 3(a) and no stop order suspending the effectiveness of the Registration Statement under the ~~Trust Indenture~~ Securities Act or the blue sky laws of ~~1939~~any jurisdiction has been issued and, ~~as amended (~~to the ~~“Trust Indenture Act”)~~best of their knowledge, information and belief, no ~~qualification~~ proceeding for such purpose is pending before or threatened or contemplated by the Commission or the authorities of ~~an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities~~any such jurisdiction. (ii) ~~The statements in~~ Any request for additional information with respect to the ~~Time~~ Registration Statement on the part of ~~Sale Information and Final Prospectus under “Description~~ the staff of ~~Bonds” and “Description~~ the Commission or any such authorities has been complied with to the satisfaction of ~~Debt Securities and Warrants”, insofar as~~ the staff of the Commission or such ~~statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein~~authorities. (iii) ~~The statements in~~ Each signer of such certificate has carefully examined the ~~Time of Sale Information,~~ Registration Statement and ~~Final~~ the Prospectus (including any documents filed under ~~“Description of Debt Securities~~ the Exchange Act and ~~Warrants — United States Federal Income Taxation”, as supplemented~~ deemed to be incorporated by ~~“Tax Matters — United States Taxation”, to~~ reference into the ~~extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv~~Prospectus) ~~Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province~~ and ~~their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that~~ (A) ~~the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment),~~ believes that as of the date of ~~this Agreement~~such certificate, ~~contained an untrue statement of a~~ the Prospectus is true and correct in all material ~~fact or omitted~~ respects and does not omit to state a material fact required to be stated therein or necessary in order to make the statements therein not ~~misleading;~~ untrue or misleading and (B) does not know of any event that has occurred as a result of which it is necessary to amend or supplement the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, contained an untrue statement of a material fact or omitted to state a material fact necessary Prospectus in order to make the statements ~~therein,~~ therein not untrue or misleading in any material respect and there has been no document required to be filed under the ~~light of~~ Exchange Act and the ~~circumstances under which they were made, not misleading; or (C)~~ Exchange Act Rules and Regulations that upon such filing would be deemed to be incorporated by reference into the ~~Final~~ Prospectus ~~(other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel~~ that has not been ~~requested~~ so filed. (iv) Each of the representations and warranties of the REIT and the Operating Partnership contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respects. (v) Each of the covenants required to ~~comment)~~be performed by the REIT and the Operating Partnership herein on or prior to the delivery of such certificate has been duly, as timely and fully performed and each condition herein required to be complied with by the REIT and the Operating Partnership on or prior to the date of ~~its date or~~ such certificate has been duly, timely and fully complied with. (vi) To the extent applicable, since the execution and delivery of the Underwriting Agreement and prior to the Closing Date and the Option Closing Date, ~~contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein,~~ there has not occurred any downgrading in the ~~light~~ rating accorded the REIT or any securities of the ~~circumstances under which they were made, not misleading, and,~~ REIT by any rating agency nor has any notice been given to the REIT or any of the Subsidiaries of (A) any intended or potential downgrading by any rating agency in such ~~counsel’s opinion~~securities, or (B) any review or possible change by any rating agency that does not indicate a stable, positive or improving rating accorded such securities. (j) The “lock-up” agreements, each substantially in the form of Exhibit D attached hereto, between you and certain stockholders, officers and directors of the REIT and the Operating Partnership relating to sales and certain other dispositions of securities of the REIT and the Operating Partnership, delivered to you, shall be in full force and effect on the Closing Date and the Option Closing Date. (k) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Shares, the Registration Statement and the ~~Final Prospectus (~~Prospectus, and all other ~~than~~ legal matters relating to this Agreement and the ~~financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to~~ transactions contemplated hereby shall be ~~appropriately responsive~~ reasonably satisfactory in all material respects to ~~the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom~~ counsel for the ~~Province~~Underwriters and the REIT and the Operating Partnership shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters. (l) The NYSE shall have approved the Shares for listing, ~~dated~~ subject only to official notice of issuance. (m) Prior to the Closing Date, ~~subject to such qualifications~~ the Articles Supplementary shall have been filed and ~~based upon such assumptions as are customary in~~ accepted by SDAT and the ~~United Kingdom in respect of such opinion, to~~ Form 8-A Registration Statement shall have been filed with the ~~effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt~~ Securities and ~~Warrants — United Kingdom Taxation”~~ Exchange Commission and, as ~~supplemented by “Tax Matters — United Kingdom Taxation”~~of the Closing Date and the Option Closing Date, to each of the ~~extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects~~ Articles Supplementary and the ~~legal matters referred to therein~~Form 8-A Registration Statement shall be effective. g(n) ~~The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated~~ Prior to the Closing Date, the REIT shall execute and deliver to the Underwriters a letter in the form of Exhibit E attached hereto for the benefit of Cxxxx & Steers Capital Management, Inc. and/or its subsidiaries and affiliates. (o) The REIT and the Operating Partnership shall have furnished to the Underwriters such certificates, including, without limitation, one or more certificates of the Secretary of the REIT on behalf of itself and the Operating Partnership, in addition to those otherwise specifically mentioned herein, as the Underwriters may have reasonably requested as to the ~~matters specified~~ accuracy and completeness at the Closing Date and the Option Closing Date of any statement in ~~subdivisions (i)~~the Registration Statement or the Prospectus or any documents filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus, ~~and (iv) (but only as of the date of this Agreement~~ as to ~~clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in~~ the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated accuracy at the Closing ~~Date, in which such Minister, Deputy Minister or other officer, as~~ Date and the ~~case may be, to the best~~ Option Closing Date of ~~his or her knowledge after reasonable investigation, shall state that~~ the representations and warranties of the ~~Province in this Agreement are true~~ REIT and ~~correct, that~~ the ~~Province has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior~~ Operating Partnership herein as to the ~~Closing Date, that no stop order suspending~~ performance by the ~~effectiveness~~ REIT and the Operating Partnership of its obligations hereunder or as to the fulfillment of the ~~Registration Statement has been issued~~ conditions concurrent and no proceedings for that purpose have been instituted or are contemplated by the SEC. i) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province shall have furnished precedent to the Underwriters and to counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. k) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The Province will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations ~~of the Underwriters~~ hereunder ~~may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf~~ of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.

Appears in 1 contract

Samples: Underwriting Agreement (Kilroy Realty Corp)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the several Underwriters to purchase and pay for the Firm Securities ~~will~~ on the First Closing Date and the Optional Securities on the Second Closing Date shall be subject to the accuracy of the representations and warranties on the part of the ~~Province herein~~Company herein set forth as of the date hereof and as of the First Closing Date or the Second Closing Date, as the case may be, to the accuracy of the statements of ~~the representatives~~ officers of the ~~Province~~ Company made pursuant to the provisions hereof, to the performance by the ~~Province~~ Company of its obligations ~~hereunder and with regard to the Securities~~ hereunder, and to the following additional ~~conditions precedent~~conditions: (a) ~~Prior~~ The Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the ~~Closing Date~~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; all material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filings by Rule 433; if the Company has elected to rely upon Rule 462(b) under the Act, the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Eastern time, on the date of this Agreement; no stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement or any part thereof shall have been issued and no ~~proceedings~~ proceeding for that purpose or pursuant to Section 8A of the Act shall have been ~~instituted~~ initiated or, to the knowledge of the ~~Province or the Representatives~~Company, ~~shall be contemplated~~ threatened by the ~~SEC~~Commission; ~~and each~~ no stop order suspending or preventing the use of the Pricing Prospectus, Prospectus or any Issuer Free Writing ~~Prospectus, to the extent required by Rule 433 under the Securities Act, shall have been filed with the SEC under the Securities Act; and the Final~~ Prospectus shall have been ~~filed with~~ initiated or, to the ~~SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time~~knowledge of the Company, threatened by the Commission; and all requests for additional information on the ~~second business day following~~ part of the ~~date of this Agreement~~Commission shall have been complied with to your reasonable satisfaction (b) The Securities at each Closing Date shall have been duly listed on the Exchange. b) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any material adverse change in the financial, economic or political condition of the Province from that set forth in the Registration Statement, the Time of Sale Information and the Final Prospectus; and the Underwriters shall have received, on the Closing Date, a certificate dated the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth in the first clause of this Section 9(b). (c) The ~~Underwriters shall have received an opinion~~ legality and sufficiency of the ~~Attorney General~~ authorization, issuance and sale or transfer and sale of the ~~Province~~Securities hereunder, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Province, dated the Closing Date, to the effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this ~~Agreement~~ Agreement, and all corporate proceedings and other legal matters incident thereto, and the ~~Fiscal Agency Agreement, the issuance~~ form of the ~~Securities~~ Preliminary Prospectus, Pricing Prospectus and ~~the performance by the Province of its obligations hereunder and thereunder~~ Prospectus shall have been ~~obtained and are in full force and effect~~approved by counsel for the Underwriters exercising reasonable judgment. (vd) ~~Proceedings may be brought against~~ You shall not have advised the ~~Province in~~ Company that the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the SecuritiesPricing Prospectus, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the ~~holder of a Security is resident within British Columbia~~ Prospectus or ~~is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”~~any amendment or supplement thereto, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated the Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion, to the effect that: (i) The Securities are exempted securities under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained contains an untrue statement of a fact, which, in the opinion of counsel for the Underwriters, 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 necessary to make the statements therein not misleading; . (Be) Subsequent to the ~~Time~~ execution and delivery of ~~Sale Information (other than~~ this Agreement, there shall not have occurred any material adverse change, or any development involving a prospective material adverse change, in or affecting particularly the ~~financial statements and other financial data contained therein~~ business or ~~omitted therefrom, as to which such counsel has not been requested to comment), as~~ properties of the ~~Time~~ Company or its subsidiaries, taken as a whole, whether or not arising in the ordinary course of ~~Sale~~business, ~~contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein~~which, in the ~~light~~ judgment of the ~~circumstances under which they were made~~Representatives, makes it impractical or inadvisable to proceed with the offering or purchase of the Securities as contemplated hereby. (f) On or after the Applicable Time there shall not ~~misleading~~have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the Exchange or on The Nasdaq Stock Market; (ii) a suspension or material limitation in trading in the Company’s securities on the Exchange; (iii) a general moratorium on commercial banking activities declared by either Federal or New York State authorities or a material disruption in commercial banking or securities settlement or clearance services in the United States; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (Cv) the ~~Final~~ occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere; if the effect of any such event specified in clause (iv) or (v) in your judgment makes it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities being delivered at such Closing Date on the terms and in the manner contemplated in the Pricing Prospectus and the Prospectus. (~~other than the financial statements and other financial data contained therein or omitted therefrom~~g) There shall have been furnished to you, as ~~to which such counsel has not been requested to comment)~~Representatives of the Underwriters, ~~as of its date~~ on the First Closing Date or the Second Closing Date, ~~contained or contains an untrue~~ as the case may be, except as otherwise expressly provided below: (i) An opinion and 10b-5 statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters Xxxxx & Xxxxxxx LLP, ~~United Kingdom~~ counsel for the ~~Province~~Company, addressed to the Underwriters and dated the First Closing Date or the Second Closing Date, ~~subject~~ as the case may be, in form and substance reasonably acceptable to the Representatives, and the Company shall have furnished to such ~~qualifications~~ counsel such documents and ~~based~~ shall have exhibited to them such papers and records as they may reasonably request for the purpose of enabling them to pass upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to thereinmatters. g(ii) ~~The Underwriters shall have received an~~ An opinion of ~~Dxxxx~~ Xxxxx Xxxx & ~~Wxxxxxxx~~ Xxxxxxxx LLP, ~~United States~~ counsel for the Underwriters, dated the First Closing Date or the Second Closing Date, as to the ~~matters specified~~ case may be, in ~~subdivisions (i),~~ form and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory substance reasonably acceptable to the Representatives, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as they may reasonably request for the purpose of enabling them to pass upon such matters. (iii) A certificate of the chief executive officer and the principal financial officer of the Company, dated the First Closing Date or the Second Closing Date~~, in which such Minister, Deputy Minister or other officer~~, as the case may be, to the ~~best of his or her knowledge after reasonable investigation, shall state that~~ effect that: (1) the representations and warranties of the ~~Province~~ Company set forth in Section 2 of this Agreement are true and ~~correct~~correct as of the date of this Agreement and as of the First Closing Date or the Second Closing Date, ~~that~~ as the ~~Province~~ case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to ~~the~~ such Closing Date~~, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the SEC.~~; i(2) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province shall have furnished to the Underwriters and to counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. k) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any ~~placing on credit watch with negative implications~~review for a possible change that does not indicate the direction of the possible change, in the ~~ratings~~ rating accorded any of the ~~debt~~ securities of the ~~Province~~ Company by any “nationally recognized statistical rating ~~agency~~ organization”, as such term is defined in Section 3(a)(62) of the Exchange Act; (3) there shall not have occurred any change, or any development involving a prospective change, in the ~~United States~~condition, financial or otherwise, or in the earnings, business or operations of the Company and its subsidiaries, taken as a whole, from that set forth in the Pricing Prospectus provided to the prospective purchasers of the Securities that, in the Representatives’ judgment, is material and adverse and that makes it, in the Representatives’ judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Pricing Prospectus; and (4) subsequent to the date of the most recent financial statements included in the Pricing Prospectus, and except as set forth or contemplated in the Pricing Prospectus, (A) none of the Company and its consolidated subsidiaries shall have incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions not in the ordinary course of business, and (B) there shall not have been any change that has had or would reasonably be expected to have a Material Adverse Effect or any material change in short-term debt or long-term debt of the Company and its subsidiaries. The delivery of the certificate provided for in this subparagraph shall be and constitute a representation and warranty of the Company as to the facts required in the immediately foregoing clauses (1), (2), (3) and (4) to be set forth in said certificate. (iv) On the date hereof and also on the First Closing Date or the Second Closing Date, as the case may be, there shall be delivered to you letters addressed to you, from Forvis, LLP, an independent registered public accountant firm, the first one to be dated the date hereof, the second one to be dated the First Closing Date and the third one (in the event of a second closing) to be dated the Second Closing Date, in form and substance reasonably satisfactory to the Underwriters. There shall not have been any change or decrease specified in the letters referred to in this subparagraph which makes it impractical or inadvisable in the judgment of the Representatives to proceed with the offering or purchase of the Securities as contemplated hereby. (v) The “lock-up” agreements, each substantially in the form of Exhibit A hereto, between the Representatives and each of the officers, directors and certain security holders of the Company named in Schedule C hereto relating to sales and certain other dispositions of shares of Common Stock or certain other securities, delivered to the Representatives on or before the date hereof, shall be in full force and effect on the Closing Date. (vi) Such further certificates and documents as you may reasonably request. All such opinions, certificates, letters and documents ~~will~~ shall be in compliance with the provisions hereof only if they are ~~reasonably~~ satisfactory to you and to Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the ~~Representatives~~Underwriters, which approval shall not be unreasonably withheld. The ~~Province will~~ Company shall furnish ~~the Underwriters~~ you with such manually signed or conformed copies of such opinions, certificates, letters and documents as ~~the Representatives reasonably~~ you request. If any of condition to the ~~above conditions shall~~ Underwriters’ obligations hereunder to be satisfied prior to or at the First Closing Date is not ~~have been fulfilled as reasonably contemplated herein~~so satisfied, this Agreement ~~and all obligations of~~ at your election will terminate upon notification to the ~~Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters,~~ Company without ~~any~~ liability on the part of any Underwriter or the Company, except for the expenses to be paid or reimbursed by the Company pursuant to Sections 6 and 8 hereof and except to the ~~Province or of the Province to any Underwriter, except as~~ extent provided in Section ~~6, Section 10 and Section 13~~ 9 hereof~~. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement~~.

Appears in 1 contract

Samples: Underwriting Agreement (HCI Group, Inc.)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of ~~the several Underwriters to purchase and pay for the Securities will be~~ each Underwriter hereunder are subject to the ~~accuracy~~ following conditions: (a) All filings required by Rule 424 and Rule 430A of the ~~representations~~ Rules and ~~warranties~~ Regulations shall have been made. If the Company has elected to rely upon Rule 462(b), the registration statement filed under Rule 462(b) shall have become effective by 10:00 p.m., New York City time, on the ~~part~~ date of the Province herein, to the accuracy of the statements of the representatives of the Province made pursuant to the provisions hereof, to the performance by the Province of its obligations hereunder and with regard to the Securities and to the following additional conditions precedent:this Agreement. a(i) ~~Prior to the Closing Date, no~~ No stop order suspending the effectiveness of the Registration ~~Statement~~Statement or preventing or suspending the use of the Base Prospectus, ~~as amended from time to time~~any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall ~~have been instituted or~~be pending or threatened by the Commission, to (ii) no order suspending the ~~knowledge~~ effectiveness of the ~~Province~~ Registration Statement or the ~~Representatives,~~ qualification or registration of the Shares under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by the ~~SEC; and each Issuer Free Writing Prospectus~~Commission or the authorities of any such jurisdiction, to (iii) any request for additional information on the ~~extent required by Rule 433 under~~ part of the ~~Securities Act,~~ staff of the Commission or any such authorities shall have been ~~filed~~ complied with to the ~~SEC under~~ satisfaction of the ~~Securities Act; and~~ staff of the ~~Final~~ Commission or such authorities, (iv) after the date hereof no amendment or supplement to the Registration Statement, the Prospectus or the Pricing Prospectus shall have been filed ~~with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this Agreement. b) Subsequent~~ unless a copy thereof was first submitted to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any material adverse change in the financial, economic or political condition of the Province from that set forth in the Registration Statement, the Time of Sale Information Representative and the ~~Final Prospectus;~~ Representative does not reasonably object thereto, and (v) the ~~Underwriters~~ Representative shall have ~~received~~received certificates, ~~on the Closing Date, a certificate~~ dated the Closing Date and signed by the ~~Minister of Finance~~ Chief Operating Officer and the Chief Financial Officer of the ~~Province~~Company (who may, as to proceedings threatened, rely upon the ~~Deputy Minister~~ best of ~~Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives~~ their information and belief), to the effect ~~set forth~~ of clauses (i), (ii) and (iii) of this paragraph. (c) Since the respective dates as of which information is given in the ~~first clause~~ Registration Statement and the Pricing Prospectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of ~~this Section 9(b)~~operations of the Company or the Subsidiary, whether or not arising from transactions in the ordinary course of business, in each case other than as described in or contemplated by the Registration Statement and the Pricing Prospectus, and (ii) neither the Company nor the Subsidiary shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not described in the Registration Statement and the Pricing Prospectus, if in the judgment of the Representative any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price. c(d) Since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there shall have been no litigation or other proceeding instituted against the Company, the Subsidiary, or any of its or their officers or directors in their capacities as such, before or by any federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceeding an unfavorable ruling, decision or finding would, in the judgment of the Representative, have a Material Adverse Effect or if, in the judgment of the Representative, any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price. (e) Each of the representations and warranties of the Company contained herein shall be true and correct in all respects (in the case of any representation and warranty containing a materiality or Material Adverse Effect qualification) or in all material respects at the Closing Date, and all covenants and agreements contained herein to be performed on the part of the Company and all conditions contained herein to be fulfilled or complied with by the Company at or prior to the Closing Date shall have been duly performed, fulfilled or complied with. (f) The ~~Underwriters~~ Representative shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Provinceopinion, dated the Closing Date, satisfactory in form and substance to the ~~effect that under~~ Representative and counsel for the ~~laws of British Columbia~~ Underwriters from Mxxxxx, Xxxxx & Bxxxxxx LLP, counsel to the Company. (g) The Representative shall have received an opinion, dated the Closing Date, in form and ~~Canada~~ substance previously agreed to by the Representative and ~~subject~~ counsel for the Underwriters from Kxxxxx & Kxxxxx LLP, intellectual property counsel to ~~such qualifications~~ the Company. (h) The representative shall have received an opinion, dated the Closing Date, from Cxxxxx, Hall & Sxxxxxx LLP, counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and ~~based on such assumptions as are customary~~ this Agreement, which opinion shall be satisfactory in ~~British Columbia in respect of an opinion of this type:~~all respects to the Representative. (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance Concurrently with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this ~~Agreement and the Fiscal Agency~~ Agreement, the ~~issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder~~ Accountants shall have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available furnished to the ~~Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not~~ Representative a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canadaletter, dated the ~~Closing Date~~date of its delivery, as addressed to the ~~matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications~~ Representative and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to ~~them~~ the Representative, confirming that they are independent accountants with respect to the Company and ~~they believe that~~ the ~~Representatives are justified~~ Subsidiary as required by the Act and the Exchange Act and the Rules and Regulations and with respect to certain financial and other statistical and numerical information contained or incorporated by reference in ~~relying thereon. e) The Underwriters~~ the Registration Statement. At the Closing Date the Accountants shall have ~~received~~ furnished to the ~~opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province~~Representative a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date, ~~subject~~ which would require any change in their letter dated the date hereof if it were required to ~~such qualifications~~ be dated and ~~based upon such assumptions as are customary~~ delivered at the Closing Date. (j) At the Closing Date, there shall be furnished to the Representative a certificate, dated the date of its delivery, signed by each of the Chief Operating Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to the ~~United States in respect of such opinion~~Representative, to the effect that: (i) ~~The Securities are exempted securities~~ Each signer of such certificate has carefully examined the Registration Statement, the Prospectus and the Disclosure Package (including any documents filed under the ~~Trust Indenture~~ Exchange Act ~~of 1939, as amended (~~and deemed to be incorporated by reference into the ~~“Trust Indenture Act”),~~ Pricing Prospectus and ~~no qualification of an indenture in respect of~~ the ~~Securities under the Trust Indenture Act is required for the issuance, sale~~ Prospectus) and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) ~~the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment),~~ as of the date of ~~this Agreement~~such certificate, ~~contained an untrue statement of a~~ such documents are true and correct in all material ~~fact or omitted~~ respects and do not omit to state a material fact required to be stated therein or necessary in order to make the statements therein not ~~misleading;~~ untrue or misleading and (B) in the ~~Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as~~ case of the ~~Time~~ certificate delivered at the Closing Date, since the Effective Date no event has occurred as a result of ~~Sale, contained an untrue statement of a material fact~~ which it is necessary to amend or ~~omitted to state a material fact necessary~~ supplement the Prospectus in order to make the statements ~~therein, in the light of the circumstances under which they were made,~~ therein not untrue or misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f(ii) ~~The Underwriters shall have received an opinion~~ Each of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of the ~~Province~~ Company contained in this Agreement ~~are~~ were, when originally made, and are, at the time such certificate is delivered, true and correct~~, that~~ . (iii) Each of the ~~Province has complied with all agreements and satisfied all conditions on its part~~ covenants required to be performed by the Company herein on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be satisfied at or fulfilled on or prior to the date of such certificate has been duly, timely and fully satisfied or fulfilled. (k) On or prior to the Closing Date, ~~that no~~ the Representative shall have received the executed agreements referred to in Section 4(n). (l) The Shares shall be qualified for sale in such jurisdictions as the Representative may reasonably request and each such qualification shall be in effect and not subject to any stop order ~~suspending~~ or other proceeding on the ~~effectiveness of~~ Closing Date. (m) Prior to the ~~Registration Statement has been issued and no proceedings for that purpose~~ Closing Date, the Shares shall have been ~~instituted or are contemplated by~~ duly authorized for listing on the ~~SEC~~NGM upon official notice of issuance. i(n) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province Company shall have furnished to the ~~Underwriters and~~ Representative such certificates, in addition to ~~counsel for the Underwriters such further certificates and documents~~ those specifically mentioned herein, as the ~~Representatives and such counsel~~ Representative may have reasonably ~~request. k) Subsequent~~ requested as to the ~~execution of this Agreement~~ accuracy and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The Province will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or completeness at ~~any time prior to,~~ the Closing Date of any statement in the Registration Statement or the Prospectus, as to the accuracy at the Closing Date of the representations and warranties of the Company herein, as to the performance by the ~~Representatives on behalf~~ Company of its obligations hereunder, or as to the fulfillment of the ~~Underwriters, without any liability on the part of any Underwriter~~ conditions concurrent and precedent to the ~~Province or~~ obligations hereunder of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this AgreementRepresentative.

Appears in 1 contract

Samples: Underwriting Agreement (Universal Display Corp \Pa\)

Conditions of the Obligations of the Underwriters. ~~The respective~~ In addition to the execution and delivery of the Price Determination Agreement, the obligations of ~~the several Underwriters to purchase and pay for the Securities will be~~ each Underwriter hereunder are subject to the ~~accuracy~~ following conditions: (a) Notification that the Registration Statement and all post-effective amendments thereto have become effective shall be received by UBS Warburg not later than 5:00 p.m., New York City time, on the date of this Agreement or at such later date and time as shall be consented to in writing by UBS Warburg and all filings required by Rule 424 of the ~~representations~~ Rules and warranties on the part of the Province herein, to the accuracy of the statements of the representatives of the Province made pursuant to the provisions hereof, to the performance by the Province of its obligations hereunder Regulations and ~~with regard to the Securities and to the following additional conditions precedent:~~Rule 430A shall have been made. a(i) ~~Prior to the Closing Date, no~~ No stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement shall have been issued and no proceedings for that purpose shall ~~have been instituted or~~be pending or threatened by the Commission, to (ii) no order suspending the ~~knowledge~~ effectiveness of the ~~Province~~ Registration Statement or the ~~Representatives,~~ qualification or registration of the Units under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by the ~~SEC; and each Issuer Free Writing Prospectus~~Commission or the authorities of any such jurisdiction, to (iii) any request for additional information on the ~~extent required by Rule 433 under~~ part of the ~~Securities Act,~~ staff of the Commission or any such authorities shall have been ~~filed~~ complied with to the ~~SEC under~~ satisfaction of the ~~Securities Act;~~ staff of the Commission or such authorities and (iv) after the ~~Final~~ date hereof no amendment or supplement to the Registration Statement or the Prospectus shall have been filed unless a copy thereof was first submitted to UBS Warburg and UBS Warburg did not object thereto in good faith, and UBS Warburg shall have received certificates, dated the Closing Date and the Option Closing Date and signed by the Chief Executive Officer and Chief Financial Officer of the General Partner (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii). (c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there shall not have been, and no development shall have occurred which could reasonably be expected to result in, a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Star Entities, taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) none of the Star Entities shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the ~~SEC pursuant~~ Registration Statement and the Prospectus, if in the judgment of UBS Warburg any such development makes it impracticable or inadvisable to ~~Rule 424 not later than 5:00 p.m. New York City time~~consummate the sale and delivery of the Units by the Underwriters at the public offering price. (d) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against any of the Star Entities or any of their respective officers or directors in their capacities as such, before or by any federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceeding an unfavorable ruling, decision or finding would materially and adversely affect the business, properties, business prospects, condition (financial or otherwise) or results of operations of the Star Entities taken as a whole. (e) Each of the representations and warranties of the Star Parties contained herein shall be true and correct in all material respects (except for those representations and warranties which are already qualified by materiality, in which case such representations and warranties shall be true and correct in all respects) at the Closing Date and, with respect to the Option Units, at the Option Closing Date, as if made at the Closing Date and, with respect to the Option Units, at the Option Closing Date, and all covenants and agreements herein contained to be performed on the part of the Star Parties and all conditions herein contained to be fulfilled or complied with by the Star Parties at or prior to the Closing Date and, with respect to the Option Units, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with. (f) The Representatives shall have received an opinion, dated the Closing Date and, with respect to the Option Units, the Option Closing Date, satisfactory in form and substance to counsel for the Underwriters, from Xxxxxxxx Xxxxx Xxxxxxxx Xxxx & Ballon LLP, counsel to the Partnership, to the effect set forth in Exhibit C. (g) The Representatives shall have received an opinion, dated the Closing Date and, with respect to the Option Units, the Option Closing Date, from Xxxxxx & Xxxxxx, L.L.P., counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be satisfactory in all respects to the Representatives. (h) On the date of the Prospectus, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, addressed to the Representatives and in form and substance satisfactory to the Representatives, confirming that they are independent accountants with respect to the Partnership as required by the Act and the Rules and Regulations and with respect to the financial and other statistical and numerical information contained in the Registration Statement or incorporated by reference therein. At the Closing Date and, as to the Option Units, the Option Closing Date, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, which shall confirm, on the ~~second business day following~~ basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of ~~this Agreement~~the letter referred to in the prior sentence to a Date (specified in the letter) not more than five days prior to the Closing Date and the Option Closing Date which would require any change in their letter dated the date of the Prospectus, if it were required to be dated and delivered at the Closing Date and the Option Closing Date. b(i) ~~Subsequent to the execution of this Agreement and~~ On or prior to the Closing Date, ~~there shall not have occurred any material adverse change in~~ the ~~financial, economic or political condition of the Province from that set forth in the Registration Statement, the Time of Sale Information and the Final Prospectus; and the Underwriters~~ Representatives shall have ~~received, on~~ received the ~~Closing Date, a certificate dated~~ executed agreements referred to in Section 4(m). (j) At the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth in the first clause of this Section 9(b). c) The Underwriters shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Province, dated the Closing Date, to the effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated the Closing Dateand, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the ProvinceOption Units, the ~~Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory~~ Option Closing Date, there shall be furnished to the Representatives ~~as to factual matters. The opinion shall state in effect that on~~ an accurate certificate, dated the ~~basis~~ date of ~~an independent examination of such records~~its delivery, ~~certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion~~ signed by each of the ~~Attorney General,~~ Chief Executive Officer and the ~~Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General~~ Chief Financial Officer of the ~~Province~~General Partner, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to ~~them and they believe that~~ the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinionRepresentatives, to the effect that: (i) ~~The Securities are exempted securities~~ Each signer of such certificate has carefully examined the Registration Statement and the Prospectus (including any documents filed under the ~~Trust Indenture~~ Exchange Act ~~of 1939, as amended (~~and deemed to be incorporated by reference into the ~~“Trust Indenture Act”),~~ Prospectus) and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) ~~the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment),~~ as of the date of ~~this Agreement~~such certificate, ~~contained an untrue statement of a~~ such documents are true and correct in all material ~~fact or omitted~~ respects and do not omit to state a material fact required to be stated therein or necessary in order to make the statements therein not ~~misleading;~~ untrue or misleading and (B) since the ~~Time~~ Effective Date, no event has occurred as a result of ~~Sale Information (other than~~ which it is necessary to amend or supplement the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, contained an untrue statement of a material fact or omitted to state a material fact necessary Prospectus in order to make the statements ~~therein,~~ therein not untrue or misleading in any material respect and there has been no document required to be filed under the ~~light of~~ Exchange Act and the ~~circumstances under which they were made, not misleading; or (C)~~ Exchange Act Rules and Regulations that upon such filing would be deemed to be incorporated by reference into the ~~Final~~ Prospectus ~~(other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel~~ that has not been ~~requested to comment), as~~ so filed; (ii) Each of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of the ~~Province~~ Star Parties contained in this Agreement were, when originally made, and are, at the time such certificate is delivered, true and correct in all material respects (except for those representations and warranties which are already qualified by materiality, in which case such representations and warranties are true and ~~correct, that~~ correct in all respects); (iii) Each of the ~~Province has complied with all agreements and satisfied all conditions on its part~~ covenants required herein to be performed ~~or satisfied at~~ by the Star Parties on or prior to the delivery of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Star Parties on or prior to the date of such certificate has been duly, timely and fully complied with; and (iv) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (A) there has not been, and no development has occurred which could reasonably be expected to result in, a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Star Entities or Xxxxxx Entities taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (B) none of the Star Entities or the Xxxxxx Entities have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court, legislative, administrative, regulatory or other governmental action, investigation, order or decree, which is not set forth in the Registration Statement and the Prospectus; and such other matters as the Representatives may reasonably request. (k) The Units shall be qualified for sale in such states as the Representatives may reasonably request, each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date and the Option Closing Date. (l) Prior to the Closing Date, ~~that no stop order suspending~~ the ~~effectiveness of the Registration Statement has been issued and no proceedings for that purpose~~ Units shall have been ~~instituted or are contemplated by the SEC~~duly authorized for listing on NYSE upon official notice of issuance. i(m) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province Partnership shall have furnished to the ~~Underwriters and~~ Representatives such certificates, in addition to ~~counsel for the Underwriters such further certificates and documents~~ those specifically mentioned herein, as the Representatives may have reasonably requested as to the accuracy and ~~such counsel reasonably request~~completeness at the Closing Date and the Option Closing Date of any statement in the Registration Statement or the Prospectus or any documents filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus, as to the accuracy at the Closing Date and the Option Closing Date of the representations and warranties of the Star Parties herein, as to the performance by the Star Parties of their obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters. k(n) ~~Subsequent to the execution of this Agreement and prior to~~ Concurrently with the Closing Date, ~~there~~ the closing of the Xxxxxx Acquisition shall ~~not~~ have occurred. (o) Concurrently with the Closing Date, the closing of the Note Purchase shall have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The Province will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement...

Appears in 1 contract

Samples: Underwriting Agreement (Star Gas Partners Lp)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the several Underwriters to purchase and pay for the Securities will be subject to the accuracy of the representations and warranties by or on ~~the part~~ behalf of the ~~Province~~ Company herein~~, to the accuracy of the statements of the representatives of the Province made pursuant to the provisions hereof~~, to the performance by the ~~Province~~ Company of its obligations hereunder ~~and with regard to the Securities~~ and to the following additional conditions precedent: (a) ~~Prior~~ At or prior to the execution of the Terms Agreement and on the Closing Date, the Representatives shall have received a letter, dated the date of delivery thereof and any later date on which Option Securities are purchased if specified in a Terms Agreement, of Ernst & Young LLP, or such other independent registered public accounting firm acceptable to the Representatives, addressed to the Underwriters and the Board of Directors of the Company, with respect to the financial statements and certain financial information contained or referred to in the Registration Statement, Pricing Disclosure Package and the Prospectus, as applicable. Such letter shall be in form and substance reasonably satisfactory to the Representatives. (b) The Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 4(a) of this Agreement; the final term sheet contemplated by Section 4(b) of this Agreement (if required pursuant to such section), and any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; no stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement or of any part thereof shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Province~~ Company or ~~the Representatives~~any Underwriter, shall be contemplated by the ~~SEC~~Commission; and ~~each~~ no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing ~~Prospectus, to the extent required by Rule 433 under the Securities Act, shall have been filed with the SEC under the Securities Act; and the Final~~ Prospectus shall have been ~~filed with~~ initiated or threatened by the ~~SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this Agreement~~Commission. b(c) Subsequent to the execution of ~~this Agreement and prior to~~ the ~~Closing Date~~Terms Agreement, there shall not have occurred (i) any ~~material adverse~~ change, or any development that would reasonably be expected to result in a change, in or affecting the business, condition, results of operations or stockholder’s equity of the Company and its subsidiaries, taken as a whole, which, in the judgment of the Representatives, materially impairs the investment quality of the Securities; (ii) any downgrading, or placement on any watch list for possible downgrading, in the rating of the Company’s debt securities by any of Standard & Poor’s Corporation or Xxxxx’x Investors Services, Inc.; (iii) any suspension 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 Company on any exchange or in the over-the-counter market; (iv) any banking moratorium declared by Federal or New York authorities; or (v)(A) any outbreak or escalation of major hostilities or acts of terrorism in which the United States is involved, any declaration of war by the United States Congress or (B) any other substantial national or international calamity or emergency, or any substantial change in political, financial or economic conditions or currency exchange rates or exchange controls if the ~~financial~~effect of any such event in clause (A) or (B) of this sentence, ~~economic or political condition~~ in the judgment of the ~~Province from that set forth in~~ Representatives, makes it impractical or inadvisable to market the ~~Registration Statement,~~ Securities or proceed with completion of the ~~Time~~ sale of ~~Sale Information~~ and payment for the ~~Final Prospectus; and the Underwriters~~ Securities. (d) The Representatives shall have ~~received~~received an opinion, on dated the Closing Date, ~~a certificate dated~~ from the counsel for the Company specified in the Terms Agreement, which counsel shall be either the General Counsel of the Company or such other counsel for the Company reasonably acceptable to the Representatives, and if Option Securities are purchased at any date after the Closing Date as specified in a Terms Agreement, additional opinions from such counsel, addressed to the Underwriters and ~~signed by~~ dated such later date, confirming that the ~~Minister of Finance~~ statements expressed as of the ~~Province, the Deputy Minister~~ Closing Date in such opinions remain valid as of ~~Finance of the Province or another officer of the Ministry of Finance~~ such later date; such opinions shall be in form and substance reasonably satisfactory to the ~~Representatives~~ Underwriters, substantially to the effect set forth in ~~the first clause of this Section 9(b)~~Schedule C to such Terms Agreement. c(e) The ~~Underwriters~~ Representatives shall have received an from counsel for the Underwriters specified in the Terms Agreement, such opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or ~~another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Province~~opinions, dated the Closing Date, with respect to the ~~effect that under~~ incorporation of the ~~laws~~ Company, the validity of ~~British Columbia~~ the Securities, the Registration Statement, the Prospectus and ~~Canada~~ other related matters as they may reasonably require, and ~~subject~~ the Company shall have furnished to such ~~qualifications and based on~~ counsel such ~~assumptions~~ documents as ~~are customary in British Columbia in respect~~ they request for the purpose of ~~an opinion of this type: (i) The Province has full power and authority~~ enabling them to ~~execute and deliver this Agreement and to issue and sell the Securities~~pass upon such matters. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iiif) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters Representatives shall have received ~~an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada~~a certificate, dated the Closing ~~Date, as to the matters~~ Date and on any later date on which Option Securities are purchased if specified in ~~subdivisions (i) through (vii) of paragraph (c) of this Section 9~~a Terms Agreement, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the ~~Minister of Finance~~ Chairman of the ~~Province~~Board, the ~~Deputy Minister of Finance~~ Vice Chairman of the ~~Province~~ Board, the President or ~~another~~ any Vice President and a principal financial or accounting officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion, to the effect that: (i) The Securities are exempted securities under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, Company in which such ~~Minister, Deputy Minister or other officer, as the case may be~~officers, to the best of ~~his or her~~ their knowledge after reasonable investigation, shall state that the representations and warranties of the ~~Province~~ Company in this Agreement are true and correct, that the ~~Province~~ Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date, that 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 the Company’s knowledge, are threatened by the Commission and that, 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 ~~are~~ results of operations of the Company and its subsidiaries except as set forth in or contemplated by the ~~SEC~~Prospectus or as described in such certificate. i(g) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province Company shall have ~~furnished to the Underwriters and to counsel for the Underwriters~~ satisfied such ~~further certificates and documents~~ additional conditions, if any, as the Representatives and such counsel reasonably request. k) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, are specified in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representativesa Terms Agreement. The ~~Province~~ Company will furnish the ~~Underwriters~~ Representatives with such conformed copies of such opinions, certificates, letters and documents as ~~the Representatives~~ they reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.

Appears in 1 contract

Samples: Underwriting Agreement (Unisys Corp)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the several Underwriters to purchase and pay for the Securities will be subject to the accuracy of the representations and warranties on the part of the ~~Province~~ Company herein, to the accuracy of the statements of ~~the representatives of the Province~~ Company officers made pursuant to the provisions hereof, to the performance by the ~~Province~~ Company of its obligations hereunder ~~and with regard to the Securities~~ and to the following additional conditions precedent: (a) Prior to the Closing Date, no stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement shall have been issued and no proceedings for that ~~purpose~~ purpose, pursuant to Rule 401(g)(2) under the Act or pursuant to Section 8A under the Act shall have been instituted or, to the knowledge of the ~~Province~~ Company or ~~the Representatives~~you, shall be contemplated by the ~~SEC; and each Issuer Free Writing Prospectus, to~~ Commission. (b) Since the ~~extent required by Rule 433 under~~ respective dates as of which information is given in the ~~Securities Act, shall have been filed with the SEC under the Securities Act;~~ Time of Sale Information and the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this Agreement. b) Subsequent to the execution of this Agreement and prior to the Closing DateProspectus, there shall not have ~~occurred~~ been any ~~material adverse~~ change in the ~~financial, economic or political condition~~ consolidated long-term debt of the ~~Province~~ Company and its subsidiaries (other than changes resulting from the accretion of premium or amortization of debt discount on long-term debt and changes resulting from the issuance of debt securities by the Company that have occurred, and have been disclosed by the Company to the Underwriters, prior to the date hereof), any change in the capital stock of the Company (except for increases in outstanding capital stock that are not material), or any change or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or results of operations of the Company and its subsidiaries, viewed as a whole, otherwise than as set forth or contemplated in the Time of Sale Information and the Prospectus, the effect of which, in any such case, is, in the judgment of a majority in interest of the Underwriters after discussion with the Company, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Securities on the terms and in the manner contemplated in the Time of Sale Information and the Prospectus. (c) You shall have received an opinion letter of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the Company, or such other counsel as is acceptable to X.X. Xxxxxx Securities Inc., including in-house counsel, dated the Closing Date, to the effect that: (i) The Company has been duly incorporated and is validly existing and in good standing as a corporation under the law of the State of Delaware, and JPMorgan Chase Bank, National Association has been duly organized and is validly existing and in good standing as a national banking association under the laws of the United States, in each case with full corporate power and authority to conduct its business as described in the Registration Statement, the Time of Sale Information and the ~~Final~~ Prospectus; and the Underwriters shall have received, on the Closing Date, a certificate dated the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth in the first clause of this Section 9(b). c) The Underwriters shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Province, dated the Closing Date, to the effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (ii) ~~This Agreement and the Fiscal Agency Agreement have~~ The Indenture has been duly authorized, executed and delivered by the ~~Province~~ Company and ~~each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when~~ duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated the Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion, to the effect that: (i) The Securities are exempted securities qualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and, assuming that the Indenture is the valid and ~~no qualification~~ legally binding obligation of the Trustee, constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an ~~indenture~~ implied covenant of good faith and fair dealing. (iii) The Securities have been duly authorized, executed and issued by the Company and, assuming due authentication thereof by the Trustee or JPMorgan Chase Bank, National Association, as Authenticating Agent under the Indenture and on behalf of the Trustee, and upon payment and delivery in ~~respect~~ accordance with the Underwriting Agreement, will constitute valid and legally binding obligations of the Company enforceable against the Company in accordance with their terms and entitled to the benefits of the Indenture, subject to the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors’ rights generally, general equitable principles (whether considered in a proceeding in equity or at law) and an implied covenant of good faith and fair dealing. (iv) The Underwriting Agreement has been duly authorized, executed and delivered by the Company. (v) The issue and sale of the Securities by the Company and the execution, delivery and performance by the Company of the Underwriting Agreement and the Securities will not breach, or result in a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument filed or incorporated by reference as an exhibit to the Registration Statement or any of the Company’s reports filed pursuant to the Exchange Act [TO BE IDENTIFIED IN OPINION] (collectively the “Exchange Act Documents”), nor will such actions violate the Certificate of Incorporation or By-laws of the Company or any federal or New York statute or the Delaware General Corporation Law or any rule or regulation that has been issued pursuant to any federal or New York statute or the Delaware General Corporation Law or any order known to us issued pursuant to any federal or New York statute or the Delaware General Corporation Law by any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties. (vi) No consent, approval, authorization, order, registration or qualification of or with any federal or New York governmental agency or body or any Delaware governmental agency or body acting pursuant to the Delaware General Corporation Law or, to our knowledge, any federal or New York court or any Delaware court acting pursuant to the Delaware General Corporation Law is required for the issue and sale of the Securities by the Company, except such as have been obtained under the Act and the Trust Indenture Act is and such consents, approvals, authorizations, registrations or qualifications as may be required ~~for~~ under state securities or Blue Sky laws in connection with the ~~issuance, sale~~ purchase and ~~delivery~~ distribution of the ~~Securities~~Securities by the Underwriters. (iivii) The statements made in the Time of Sale Information and ~~Final~~ the Prospectus under the captions “Description of ~~Bonds~~the Notes” and “Description of Debt ~~Securities and Warrants~~Securities”, insofar as ~~such statements~~ they purport to constitute ~~a summary~~ summaries of certain terms of documents referred to therein, ~~fairly summarize~~ constitute accurate summaries of such documents in all material ~~respects the documents referred to therein~~respects. (~~iii~~viii) The ~~statements in~~ Registration Statement has become effective under the ~~Time of Sale Information~~Act, and ~~Final~~ the Prospectus was filed on [DATE] with the Commission pursuant to Rule 424(b) of the rules and regulations of the Commission under ~~“Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”~~the Act; and, to our knowledge, no stop order suspending the ~~extent~~ effectiveness of the Registration Statement has been issued and no proceeding for that ~~they constitute summaries of legal matters referred to therein, fairly summarize in all material respects~~ purpose has been instituted or threatened by the ~~legal matters referred to therein~~Commission. (ivix) ~~Based upon~~ To the knowledge of such counsel~~’s participation~~ , there are no contracts or documents of a character required to be described in ~~conferences with representatives~~ the Registration Statement or Prospectus or to be filed as exhibits to the Registration Statement or incorporated by reference therein which are not described and filed or incorporated by reference as required. (d) You shall have received a letter of ~~the Province~~Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel for the ~~Province~~ Company, dated the Closing Date, to the effect that: (i) Such counsel shall advise the Underwriters that each of the Registration Statement as of the date it first became effective under the Securities Act, and ~~their examination~~ the Prospectus, as of ~~specified documents~~its date, ~~no facts have come~~ appeared on its face to ~~such counsel’s attention which caused~~ be appropriately responsive, in all material respects, to the requirements of the Act and the applicable rules and regulations of the Commission thereunder, except that in each case such counsel shall express no belief with respect to the financial statements or other financial or statistical data contained in, incorporated or deemed incorporated by reference in, or omitted from the Registration Statement, the Prospectus or the Exchange Act Documents; and (ii) Such counsel has no reason to believe that (A) the Registration Statement (~~other than~~ including the ~~financial statements~~ Exchange Act Documents and ~~other financial data contained therein or omitted therefrom, as~~ the Prospectus deemed to ~~which such counsel has not been requested to comment),~~ be a part thereof) as of the date of this ~~Agreement,~~ Underwriting Agreement contained an any untrue statement of a material fact or omitted to state a any material fact required to be stated therein or necessary in order to make the statements therein not misleading; , (B) the Time of Sale Information (~~other than~~ including the ~~financial statements and other financial data contained therein~~ documents incorporated by reference or ~~omitted therefrom, as to which such counsel has not been requested to comment~~deemed incorporated by reference therein), as of the ~~Time~~ time of ~~Sale,~~ the pricing of the offering of the Notes on the date of this Underwriting Agreement 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 under which they were made, not ~~misleading;~~ misleading or (C) that the ~~Final~~ Prospectus (~~other than~~ including the ~~financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment~~Exchange Act Documents), as of ~~its~~ the date of this Underwriting Agreement or as of the Closing Date, contained or contains an any untrue statement of a material fact or omitted or omits to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, ~~and~~except that in each case such counsel shall express no belief in any of clauses (A), ~~in such counsel’s opinion, the Registration Statement and the Final Prospectus~~ (~~other than~~ B) or (C) above with respect to the financial statements ~~and~~ or other financial or statistical data contained ~~therein~~ in, incorporated or deemed incorporated by reference in, or omitted ~~therefrom~~from the Registration Statement, ~~as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to~~ the ~~requirements~~ Time of Sale of Information, the ~~Securities~~ Prospectus or the Exchange Act ~~and the applicable rules and regulations of the SEC thereunder~~Documents. f(e) ~~The Underwriters~~ You shall have received ~~an opinion of Linklaters~~ from Cravath, Swaine & Xxxxx LLP, ~~United Kingdom~~ counsel for the ~~Province~~Underwriters, such opinion or opinions, dated the Closing Date, ~~subject~~ with respect to the incorporation of the Company, the validity of the Securities, the Registration Statement, the Prospectus, and other related matters as you may require, and the Company shall have furnished to such ~~qualifications and based~~ counsel such documents as they request for the purpose of enabling them to pass upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to thereinmatters. g(f) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters You shall have received a certificate of the ~~Minister of Finance of the Province~~Chairman, the ~~Deputy Minister of Finance of~~ President, any Vice-Chairman, any Senior Executive Vice President, the ~~Province~~ Chief Financial Officer, any Executive Vice President, the Treasurer or ~~another officer of the Ministry of Finance of the Province satisfactory to the Representatives~~any Senior Vice President, dated the Closing Date, in which such ~~Minister, Deputy Minister or other~~ officer~~, as the case may be~~, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of the ~~Province~~ Company in this Agreement are true and correct, that the ~~Province~~ Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or pursuant to Section 8A under the Act have been instituted or, to the best of his or her knowledge, are contemplated by the ~~SEC~~Commission, and that, subsequent to the date of the most recent financial statements in the Time of Sale Information and the Prospectus, there has been no material adverse change in the financial position or results of operations of the Company and its subsidiaries except as set forth or contemplated in the Time of Sale Information and the Prospectus or as described in such certificate. i(g) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province You shall have ~~furnished to the Underwriters~~ received letters of PricewaterhouseCoopers LLP, dated [ ] and ~~to counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. k) Subsequent to the execution of this Agreement and prior to~~ the Closing Date, confirming that they are independent public accountants within the meaning of the Act and the Rules and Regulations, and stating in effect that (i) in their opinion the financial statements and schedules examined by them and included in the Time of Sale Information and the Prospectus comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations, (ii) on the basis of a reading of the latest available interim financial statements of the Company, inquiries of officials of the Company responsible 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 in the Time of Sale Information and the Prospectus, if any, do not comply as to form in all material respects with the applicable accounting requirements of the Act and the Rules and Regulations, or are not stated on a basis substantially consistent with that of the audited financial statements included in the Time of Sale Information and the Prospectus, (B) at the date of the latest available balance sheet read by such accountants, or at a subsequent specified date not more than five days prior to such Closing Date, there ~~shall not have occurred~~ was any ~~downgrading~~change in the common stock, ~~nor shall~~ preferred stock or long-term debt of the Company and its consolidated subsidiaries or any ~~notice have been given~~ decrease (other than as occasioned by the declaration of regular dividends) in consolidated stockholders’ equity of the Company and its consolidated subsidiaries as compared with amounts shown on the latest audited annual or unaudited quarterly (whichever the case may be) balance sheet included in the Time of Sale Information and the Prospectus or (C) for the period from the date of the latest audited income statement included in the Time of Sale Information and the Prospectus to the date of the latest available income statement read by such accountants there were any ~~intended or potential downgrading or~~ decreases, as compared with the corresponding period of ~~any placing on credit watch with negative implications~~the previous year, in the ~~ratings accorded the debt securities~~ consolidated net income of the ~~Province by any nationally recognized statistical rating agency~~ Company and its subsidiaries on a consolidated basis, except in all instances for changes or decreases set forth in such letter or which the Time of Sale Information and the Prospectus discloses have occurred or may occur, and (iii) they have compared certain agreed dollar amounts (or percentages derived from such dollar amounts) and other financial information (and ratios) included in the ~~United States~~Time of Sale Information and the Prospectus (to the extent that such dollar amounts, percentages and other financial information are derived from the general accounting records of the Company and its subsidiaries subject to the internal controls of the Company’s accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter, and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter. For purposes of this subsection, “Prospectus” shall mean the prospectus as amended and supplemented on the date of such letter. All ~~such opinions, certificates, letters and documents will~~ financial statements included in material incorporated by reference into the Prospectus shall be deemed included in ~~compliance with~~ the ~~provisions hereof only if they are reasonably satisfactory to the Representatives~~Prospectus for purposes of this subsection. The ~~Province~~ Company will furnish ~~the Underwriters~~ you with such conformed copies of such opinions, certificates, letters and documents as ~~the Representatives~~ you reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.

Appears in 1 contract

Samples: Underwriting Agreement (J P Morgan Chase & Co)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of ~~the several Underwriters to purchase and pay for the Securities will be~~ each Underwriter hereunder are subject to the ~~accuracy~~ following conditions: (a) All filings required by Rule 424 and Rule 430A of the ~~representations~~ Rules and ~~warranties~~ Regulations shall have been made. If the Company has elected to rely upon Rule 462(b), the registration statement filed under Rule 462(b) shall have become effective by 10:00 p.m., Washington, D.C. time, on the ~~part~~ date of the Province herein, to the accuracy of the statements of the representatives of the Province made pursuant to the provisions hereof, to the performance by the Province of its obligations hereunder and with regard to the Securities and to the following additional conditions precedent:this Agreement. a(i) ~~Prior to the Closing Date, no~~ No stop order suspending the effectiveness of the Registration ~~Statement~~Statement or preventing or suspending the use of the Base Prospectus, ~~as amended from time to time~~any preliminary prospectus, the Prospectus Supplement, the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall ~~have been instituted or~~be pending or threatened by the Commission, to (ii) no order suspending the ~~knowledge~~ effectiveness of the ~~Province~~ Registration Statement or the ~~Representatives,~~ qualification or registration of the Shares under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by the ~~SEC; and each Issuer Free Writing Prospectus~~Commission or the authorities of any such jurisdiction, to (iii) any request for additional information on the ~~extent required by Rule 433 under~~ part of the ~~Securities Act,~~ staff of the Commission or any such authorities shall have been ~~filed~~ complied with to the ~~SEC under~~ satisfaction of the ~~Securities Act; and~~ staff of the ~~Final~~ Commission or such authorities, (iv) after the date hereof no amendment or supplement to the Registration Statement, the Prospectus or the Pricing Prospectus shall have been filed ~~with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this Agreement. b) Subsequent~~ unless a copy thereof was first submitted to the ~~execution of this Agreement~~ Representatives and ~~prior to~~ the Representatives do not object thereto in good faith, and (v) the Representatives shall have received certificates, dated the Closing ~~Date~~Date and, ~~there shall not have occurred any material adverse change in the financial, economic or political condition of the Province from that set forth in the Registration Statement~~if later, the ~~Time of Sale Information and the Final Prospectus; and the Underwriters shall have received, on the Closing Date, a certificate dated the~~ applicable Option Closing Date and signed by the ~~Minister of Finance~~ Chief Executive Officer and the Chief Financial Officer of the ~~Province~~Company (who may, ~~the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory~~ as to ~~the Representatives~~ proceedings threatened, rely upon their information and belief), to the effect ~~set forth~~ of clauses (i), (ii) and (iii) of this paragraph. (c) Since the respective dates as of which information is given in the ~~first clause~~ Registration Statement and the Pricing Prospectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of ~~this Section 9(b)~~operations of the Company or any of its Subsidiaries, whether or not arising from transactions in the ordinary course of business, in each case other than as described in or contemplated by the Registration Statement and the Pricing Prospectus, and (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not described in the Registration Statement and the Pricing Prospectus, if in the judgment of the Representatives any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the public offering price. c(d) Since the respective dates as of which information is given in the Registration Statement and the Pricing Prospectus, there shall have been no litigation or other proceeding instituted against the Company, any of its Subsidiaries, or any of its or their officers or directors in their capacities as such, before or by any federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceeding an unfavorable ruling, decision or finding would, in the judgment of the Representatives, have a Material Adverse Effect or if, in the judgment of the Representatives, any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the public offering price. (e) Each of the representations and warranties of the Company contained herein shall be true and correct in all respects (in the case of any representation and warranty containing a materiality or Material Adverse Effect qualification) or in all material respects (in the case of any other representation and warranty) at the Closing Date and, with respect to the Option Shares, at the applicable Option Closing Date, and all covenants and agreements contained herein to be performed on the part of the Company and all conditions contained herein to be fulfilled or complied with by the Company at or prior to the Closing Date and, with respect to the Option Shares, at or prior to the applicable Option Closing Date, shall have been duly performed, fulfilled or complied with in all material respects. (f) The ~~Underwriters~~ Representatives shall have received an opinion of and negative assurance letter, each dated the ~~Attorney General of~~ Closing Date and, with respect to the ~~Province~~Option Shares, the ~~Deputy Attorney General of the Province~~applicable Option Closing Date, ~~Assistant Deputy Attorney General~~from Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the ~~Province~~Company, ~~dated the Closing Date~~in form and substance previously agreed to between Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP and DLA Piper LLP (US), counsel to the effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the SecuritiesUnderwriters. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iiig) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters Representatives shall have received an opinion ~~of Oxxxx~~and negative assurance letter, ~~Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada,~~ each dated the Closing Date or the applicable Option Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, ~~Canadian~~ from DLA Piper LLP (US), counsel to the ~~Province~~Underwriters, is with respect to the Registration Statement, the Prospectus and this Agreement, which opinion and negative assurance letter shall be satisfactory in all respects to the Representatives. (h) Concurrently with the execution and delivery of this Agreement, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, addressed to the Representatives and in form and substance satisfactory to ~~them~~ the Representatives, confirming that they are (i) independent accountants with respect to the Company and ~~they believe that~~ its Subsidiaries as required by the Act and the Exchange Act and the Rules and Regulations and (ii) in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X under the Act, and with respect to certain financial and other statistical and numerical information contained or incorporated by reference in the Registration Statement, the Prospectus and the General Disclosure Package. At the Closing Date and, as to the Option Shares, the applicable Option Closing Date, the Accountants shall have furnished to the Representatives ~~are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province~~a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date or the applicable Option Closing Date, ~~subject~~ as the case may be, which would require any change in their letter dated the date hereof if it were required to ~~such qualifications~~ be dated and ~~based upon such assumptions~~ delivered at the Closing Date or the applicable Option Closing Date, as ~~are customary~~ the case may be. (i) At the Closing Date and, as to the Option Shares, the applicable Option Closing Date, there shall be furnished to the Representatives a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in their capacities as such, in form and substance satisfactory to the ~~United States in respect of such opinion~~Representatives, to the effect that: (i) ~~The Securities are exempted securities~~ Each signer of such certificate has carefully examined the Registration Statement, the Prospectus and the General Disclosure Package (including any documents filed under the ~~Trust Indenture~~ Exchange Act ~~of 1939, as amended (~~and deemed to be incorporated by reference into the ~~“Trust Indenture Act”),~~ Pricing Prospectus and ~~no qualification of an indenture in respect of~~ the ~~Securities under the Trust Indenture Act is required for the issuance, sale~~ Prospectus) and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) ~~the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment),~~ as of the date of ~~this Agreement~~such certificate, ~~contained an untrue statement of a~~ such documents are true and correct in all material ~~fact or omitted~~ respects and do not omit to state a material fact required to be stated therein or necessary in order to make the statements therein not ~~misleading;~~ untrue or misleading and (B) in the ~~Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as~~ case of the ~~Time~~ certificate delivered at the Closing Date and the applicable Option Closing Date, since the Effective Date no event has occurred as a result of ~~Sale, contained an untrue statement of a material fact~~ which it is necessary to amend or ~~omitted to state a material fact necessary~~ supplement the Prospectus in order to make the statements ~~therein, in the light of the circumstances under which they were made,~~ therein not untrue or misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f(ii) ~~The Underwriters shall have received an opinion~~ Each of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of the ~~Province~~ Company contained in this Agreement ~~are~~ were, when originally made, and are, at the time such certificate is delivered, true and ~~correct, that~~ correct in all respects (in the ~~Province has complied with~~ case of any representation and warranty containing a materiality or Material Adverse Effect qualification) or in all ~~agreements~~ material respects (in the case of any other representation and ~~satisfied all conditions on its part~~ warranty). (iii) Each of the covenants required to be performed by the Company herein on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be satisfied at or fulfilled on or prior to the date of such certificate has been duly, timely and fully satisfied or fulfilled. (j) On or prior to the Closing Date, ~~that no~~ the Representatives shall have received the executed agreements referred to in Section 4(m). (k) The Shares shall be qualified for sale in such jurisdictions as the Representatives may reasonably request and each such qualification shall be in effect and not subject to any stop order ~~suspending~~ or other proceeding on the ~~effectiveness of~~ Closing Date or the ~~Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the SEC~~applicable Option Closing Date. i(l) Prior to the Closing Date, Company shall have filed a notice of listing of additional shares with respect to the Shares with Nasdaq, and Nasdaq shall not have objected to such listing. (m) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province Company shall have furnished to the ~~Underwriters~~ Representatives such certificates (including a Secretary’s Certificate and any good standing certificates), in addition to ~~counsel for the Underwriters such further certificates and documents~~ those specifically mentioned herein, as the Representatives ~~and such counsel~~ may have reasonably ~~request. k) Subsequent~~ requested as to the ~~execution of this Agreement~~ accuracy and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The Province will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or completeness at ~~any time prior to,~~ the Closing Date and the applicable Option Closing Date of any statement in the Registration Statement, the Prospectus or the General Disclosure Package, as to the accuracy at the Closing Date and the applicable Option Closing Date of the representations and warranties of the Company herein, as to the performance by the ~~Representatives on behalf~~ Company of its obligations hereunder, or as to the fulfillment of the ~~Underwriters, without any liability on the part of any Underwriter~~ conditions concurrent and precedent to the ~~Province or~~ obligations hereunder of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this AgreementRepresentatives.

Appears in 1 contract

Samples: Underwriting Agreement (Upland Software, Inc.)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the ~~several~~ Underwriters to purchase and pay for the ~~Securities~~ Series 2006-1 Notes will be subject to the ~~accuracy~~ accuracy, as of the date hereof and as of the Closing Date, of the representations and warranties on of Goal Financial and the ~~part of the Province~~ Depositor herein, to the accuracy of the written statements of ~~the representatives~~ officers of the ~~Province~~ Trust, Goal Financial, the Depositor, HEF II, HEF III, the Servicers, the Administrator, the Verification Agent, the Delaware Trustee, the Indenture Trustee and the Eligible Lender Trustee made pursuant to the provisions ~~hereof~~of this Section, to the performance by Goal Financial and the ~~Province~~ Depositor of ~~its~~ their obligations hereunder ~~and with regard to the Securities~~ and to the following additional conditions precedent: (a) ~~Prior~~ The Underwriters shall have received a letter of Deloitte & Touche LLP, dated on or prior to the date hereof, confirming that such accountants are independent public accountants within the meaning of the Securities Act, and substantially in the form of the drafts to which the Underwriters have previously agreed and otherwise in form and substance satisfactory to the Underwriters and counsel for the Underwriters (i) regarding certain numerical information contained in the Preliminary Prospectus and the Prospectus and (ii) relating to certain agreed-upon procedures. (b) The Prospectus shall have been filed with the Commission in accordance with the Securities Act and Section 5(a) hereof. On or prior to the Closing Date, no stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Province or the Representatives~~Depositor, shall be contemplated by the SEC; and each Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act, shall have been filed with the SEC under the Securities Act; and the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this AgreementCommission. b(c) Subsequent to the execution and delivery of this ~~Agreement and prior to the Closing Date~~Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the Financed Student Loans or particularly the business or properties of the Trust, Goal Financial, the Depositor, HEF II, HEF III, the Servicers, the Administrator or the Verification Agent, which, in the sole discretion of the Underwriters, materially impairs the investment quality of the Series 2006-1 Notes; (ii) any downgrading in the rating of any securities of the Trust, Goal Financial, the Depositor, HEF II or HEF III, by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act), or any public announcement that any such organization has under surveillance or review its rating of any such debt securities (other than an 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, American Stock Exchange, or NASDAQ National Market, or any setting of minimum or maximum prices for trading on such exchange; (iv) any banking moratorium declared by Federal or New York authorities; (v) any outbreak or escalation of hostilities in which the United States is involved, any declaration of war or national emergency by Congress, any material ~~adverse change~~ disruption in the ~~financial~~financial markets or any other substantial national or international calamity or emergency if, ~~economic or political condition~~ in the sole judgment of the ~~Province from that set forth~~ Underwriters, the effect of any such outbreak, escalation, declaration, material disruption, calamity or emergency makes it impractical or inadvisable to proceed with the public offering or the delivery of the Series 2006-1 Notes as contemplated by the Registration Statement, as amended as of the date hereof; (vi) a material disruption in securities settlement or clearance services in the United States; or (vii) any event or development which makes any statement of a material fact made in the Registration Statement, the ~~Time~~ Preliminary Prospectus or Prospectus untrue or which, in the opinion of ~~Sale Information~~ the Depositor or Goal Financial and their counsel or the Underwriters and their counsel, requires the filing of any amendment to or change in the Registration Statement, the Preliminary Prospectus or Prospectus in order to state a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Registration Statement, the Preliminary Prospectus or Prospectus to reflect such event or development would, in the opinion of the Underwriters, materially adversely affect the market for the Series 2006-1 Notes. (d) On the Closing Date, each of the Basic Documents and the ~~Final Prospectus;~~ Series 2006-1 Notes shall have been duly authorized, executed and delivered by the parties thereto, shall be in full force and effect and no default shall exist thereunder, and the Indenture Trustee and the Underwriters shall each have ~~received~~received a fully executed copy thereof or, on with respect to the ~~Closing Date~~Series 2006-1 Notes, a ~~certificate dated~~ conformed copy thereof. The Basic Documents and the ~~Closing Date and signed by~~ Series 2006-1 Notes shall be substantially in the ~~Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory~~ forms heretofore provided to the ~~Representatives to the effect set forth in the first clause of this Section 9(b)~~Underwriters. c(e) The Underwriters shall have received an opinion of Xxxx Xxxxxxxx, Esq., General Counsel of Goal Financial, LLC, dated the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province Closing Date and satisfactory in form and substance to the ~~Representatives~~Underwriters and counsel for the Underwriters. Such opinion may contain such assumptions, qualifications and limitations as ~~Canadian~~ are customary in opinions of this type and are reasonably acceptable to counsel to the ~~Province~~Underwriters. (f) The Underwriters shall have received (i) an opinion of Mayer, Brown, Xxxx & Maw LLP, special counsel to the Trust and the Depositor, dated the Closing Date and satisfactory in form and substance to the Underwriters and counsel for the Underwriters and (ii) a negative assurance letter of Mayer, Brown, Xxxx & Maw LLP, special counsel to the Trust and the Depositor, dated the Closing Date, with respect to the Time of Sale Information and the Prospectus satisfactory in form and substance to the Underwriters. Such opinion and letter may contain such assumptions, qualifications and limitations as are customary in opinions and letters of this type and are reasonably acceptable to counsel to the Underwriters. (g) The Underwriters shall have received an opinion of Mayer, Brown, Xxxx & Maw LLP, dated the Closing Date and satisfactory in form and substance to the Underwriters and counsel for the Underwriters to the effect that the Indenture Trustee has a valid and perfected, first priority security interest in the Trust Estate, including the Financed Student Loans, under the Indenture. Such opinion may contain such assumptions, qualifications and limitations as are customary in opinions of this type and are reasonably acceptable to counsel to the Underwriters. (h) The Underwriters shall have received an opinion of Mayer, Brown, Xxxx & Maw LLP, in its capacity as counsel to the Trust, dated the Closing Date and satisfactory in form and substance to the Underwriters and counsel for the Underwriters, with respect to (i) the creation of a “true sale” or perfected security interest with respect to the transfer of the Financed Student Loans and (ii) the nonconsolidation of (A) the Depositor and the Trust and (B) Goal Financial and the Trust. Such opinion may contain such assumptions, qualifications and limitations as are customary in opinions of this type and are reasonably acceptable to counsel to the Underwriters. (i) The Underwriters shall have received an opinion of Xxxxxxxx Xxxxxxx LLP, counsel to the Indenture Trustee and the Eligible Lender Trustee. Such opinion may contain such assumptions, qualifications and limitations as are customary in opinions of this type and are reasonably acceptable to counsel to the Underwriters. (j) The Underwriters shall have received an opinion of Xxxxxxx Xxxxxxxx & Wood LLP, counsel to the Depositor Eligible Lender Trustee, dated the Closing Date and satisfactory in form and substance to the Underwriters and counsel for the Underwriters. Such opinion may contain such assumptions, qualifications and limitations as are customary in opinions of this type and are reasonably acceptable to counsel to the Underwriters. (k) The Underwriters shall have received an opinion of Xxxxxxxx, Xxxxxx & Finger, P.A., counsel to the Delaware Trustee, dated the Closing Date and satisfactory in form and substance to the Underwriters and counsel for the Underwriters. Such opinion may contain such assumptions, qualifications and limitations as are customary in opinions of this type and are reasonably acceptable to counsel to the Underwriters. In rendering such opinion, such counsel may state that they express no opinion as to the laws of any jurisdiction other than the laws of the State of Delaware. (l) The Underwriters shall have received an opinion of counsel to the Currency Swap Counterparty, dated the Closing Date and satisfactory in form and substance to the Underwriters. (m) The Underwriters shall have received an opinion of Xxxxx Xxxx LLP, counsel to the Underwriters, dated the Closing Date and satisfactory in form and substance to the Underwriters. (n) The Underwriters shall have received copies of each opinion of counsel delivered to the Rating Agencies, together with a letter addressed to the Underwriters, dated the Closing Date, to the effect that ~~under~~ the ~~laws~~ Underwriters may rely on each such opinion to the same extent as though such opinion was addressed to each as of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securitiesits date. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. do) The Underwriters shall have received an opinion of ~~Oxxxx~~Xxxxxxxx, ~~Hxxxxx~~ Xxxxxx & ~~Harcourt LLP~~Finger, ~~Canadian~~ P.A., special Delaware counsel to for the ~~Underwriters, given in respect of the laws of British Columbia and Canada~~Trust, dated the Closing ~~Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications~~ Date and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance ~~satisfactory~~ to ~~them~~ the Underwriters and ~~they believe that the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States~~ counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion, to the effect that: (i) The Securities are exempted securities under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the SecuritiesUnderwriters. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. fp) The Underwriters shall have received an opinion of ~~Linklaters~~ Xxxxx, Xxxxx & Xxxxxx, LLP, ~~United Kingdom~~ counsel ~~for the Province~~to ACS, dated the Closing ~~Date, subject to such qualifications~~ Date and ~~based upon such assumptions as are customary~~ satisfactory in ~~the United Kingdom in respect of such opinion,~~ form and substance to the ~~effect that~~ Underwriters and counsel for the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to thereinUnderwriters. g(q) The Underwriters shall have received an opinion of ~~Dxxxx Xxxx & Wxxxxxxx LLP~~Xxxxxxx Xxxxxx, ~~United States~~ Esq., in-house general counsel to Great Lakes, dated the Closing Date and satisfactory in form and substance to the Underwriters and counsel for the Underwriters. (r) The Underwriters shall have received an opinion of Xxxxxx Xxxxxxxxx, Esq., in-house general counsel to Massachusetts Higher Education Assistance Corporation d/b/a American Student Assistance, dated the Closing ~~Date, as~~ Date and satisfactory in form and substance to the ~~matters specified in subdivisions~~ Underwriters and counsel for the Underwriters. (~~i), and (iv~~s) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the The Underwriters shall have received an opinion of Xxxxxxx Xxxxxx, Esq., in-house general counsel ~~named~~ to Great Lakes Higher Education Guaranty Corporation, dated the Closing Date and satisfactory in ~~paragraph (d) of this Section 9 as~~ form and substance to ~~matters of British Columbian~~ the Underwriters and ~~Canadian law and procedure~~counsel for the Underwriters. h(t) The Underwriters shall have received a certificate of the ~~Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives~~Trust, dated the Closing ~~Date,~~ Date and satisfactory in ~~which such Minister, Deputy Minister or other officer, as the case may be,~~ form and substance to the ~~best of his or her knowledge after reasonable investigation,~~ Underwriters and counsel for the Underwriters. (u) The Underwriters shall ~~state that the representations and warranties~~ have received a certificate of the ~~Province~~ Depositor, dated the Closing Date and satisfactory in ~~this Agreement are true~~ form and ~~correct~~substance to the Underwriters and counsel for the Underwriters. (v) The Underwriters shall have received a certificate of Goal Financial, ~~that~~ dated the ~~Province has complied~~ Closing Date and satisfactory in form and substance to the Underwriters and counsel for the Underwriters. (w) The Underwriters shall have received a certificate of HEF II, dated the Closing Date and satisfactory in form and substance to the Underwriters and counsel for the Underwriters. (x) The Underwriters shall have received a certificate of HEF III, dated the Closing Date and satisfactory in form and substance to the Underwriters and counsel for the Underwriters. (y) The Underwriters shall have received a certificate of the Verification Agent, dated the Closing Date and satisfactory in form and substance to the Underwriters and counsel for the Underwriters. (z) The Underwriters shall have received a certificate of the Indenture Trustee, dated the Closing Date and satisfactory in form and substance to the Underwriters and counsel for the Underwriters. (aa) The Underwriters shall have received a certificate of the Eligible Lender Trustee, dated the Closing Date and satisfactory in form and substance to the Underwriters and counsel for the Underwriters. (bb) The Underwriters shall have received a certificate of the Depositor Eligible Lender Trustee, dated the Closing Date and satisfactory in form and substance to the Underwriters and counsel for the Underwriters. (cc) The Underwriters shall have received a certificate of the HEF II Eligible Lender Trustee, dated the Closing Date and satisfactory in form and substance to the Underwriters and counsel for the Underwriters. (dd) The Underwriters shall have received a certificate of the HEF III Eligible Lender Trustee, dated the Closing Date and satisfactory in form and substance to the Underwriters and counsel for the Underwriters. (ee) The Underwriters shall have received a certificate of the Delaware Trustee, dated the Closing Date and satisfactory in form and substance to the Underwriters and counsel for the Underwriters. (ff) The Underwriters shall have received a certificate of a responsible officer of ACS, dated the Closing Date and satisfactory in form and substance to the Underwriters and counsel for the Underwriters. (gg) The Underwriters shall have received a certificate of a responsible officer of Great Lakes, dated the Closing Date and satisfactory in form and substance to the Underwriters and counsel for the Underwriters, certifying as to certain information with ~~all agreements~~ respect to Great Lakes contained in the Preliminary Prospectus Supplement and ~~satisfied all conditions~~ the Prospectus Supplement. (hh) The Underwriters shall have received a certificate from Massachusetts Higher Education Assistance Corporation d/b/a American Student Assistance, dated the Closing Date and satisfactory in form and substance to the Underwriters and counsel for the Underwriters. (ii) The Underwriters shall have received a certificate from Great Lakes Higher Education Guaranty Corporation, dated the Closing Date and satisfactory in form and substance to the Underwriters and counsel for the Underwriters, certifying as to certain information with respect to Great Lakes Higher Education Guaranty Corporation contained in the Preliminary Prospectus Supplement and the Prospectus Supplement. (jj) The Underwriters shall have received evidence satisfactory to it and counsel for the Underwriters that, on ~~its part to be performed~~ or ~~satisfied at or prior to~~ before the Closing Date, ~~that no stop order suspending~~ the ~~effectiveness of~~ Depositor Financing Statements, the ~~Registration Statement has been issued~~ HEF II Financing Statements , the HEF III Financing Statements and ~~no proceedings for that purpose~~ the Trust Financing Statements have been ~~instituted~~ filed in, or are ~~contemplated by~~ in proper form for filing in, the ~~SEC~~appropriate filing offices. i(kk) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province Underwriters shall have ~~furnished~~ received written evidence satisfactory to ~~the Underwriters~~ them and to counsel for the Underwriters ~~such further certificates~~ that the Class A Notes shall each be rated “Aaa” by Xxxxx’x Investors Service (“Xxxxx’x”), and ~~documents as~~ “AAA” by Standard & Poor’s Ratings Service (“S&P”) and Fitch Ratings and that the ~~Representatives~~ Class B Notes have been rated “A3” by Moody’s, “A” by S&P and ~~such counsel reasonably request~~“A” by Fitch Ratings. k(ll) ~~Subsequent~~ The ownership structures of Goal Financial and its affiliated entities, as described in the certificate delivered to the ~~execution of this Agreement and prior~~ Underwriters pursuant to ~~the Closing Date~~Section 14 hereof, ~~there~~ shall not have ~~occurred any downgrading, nor shall any notice have been given of any intended~~ changed. The Depositor will provide or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents will cause to be ~~in compliance with the provisions hereof only if they are reasonably satisfactory~~ provided to the ~~Representatives. The Province will furnish the~~ Underwriters ~~with~~ such conformed copies of such of the foregoing opinions, certificates, letters and documents as the ~~Representatives~~ Underwriters shall reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.

Appears in 1 contract

Samples: Underwriting Agreement (Goal Capital Funding, LLC)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of ~~the several Underwriters to purchase and pay for the Securities will be~~ each Underwriter are subject to the ~~accuracy~~ following conditions: (a) Notification that the Registration Statement has become effective shall be received by the Representatives not later than 5:00 p.m., New York City time, on the date of this Agreement or at such later date and time as shall be consented to in writing by the Representatives and all filings required by Rule 424 and Rule 430A of the ~~representations~~ Rules and warranties on the part of the Province herein, to the accuracy of the statements of the representatives of the Province made pursuant to the provisions hereof, to the performance by the Province of its obligations hereunder and with regard to the Securities and to the following additional conditions precedent:Regulations shall have been made. a(i) ~~Prior to the Closing Date, no~~ No stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement shall have been issued and no proceedings for that purpose shall ~~have been instituted or~~be pending or threatened by the Commission, to (ii) no order suspending the ~~knowledge~~ effectiveness of the ~~Province~~ Registration Statement or the ~~Representatives,~~ qualification or registration of the Shares under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by the ~~SEC; and each Issuer Free Writing Prospectus~~Commission or the authorities of such jurisdiction, to (iii) any request for additional information on the ~~extent required by Rule 433 under~~ part of the ~~Securities Act,~~ staff of the Commission or any such authorities shall have been ~~filed~~ complied with to the ~~SEC under~~ satisfaction of the ~~Securities Act;~~ staff of the Commission or such authorities and (iv) after the ~~Final~~ date hereof no amendment or supplement to the Registration Statement or the Prospectus shall have been filed ~~with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this Agreement. b) Subsequent~~ unless a copy thereof was first submitted to the ~~execution of this Agreement~~ Representatives and ~~prior to~~ the Representatives did not object thereto in good faith, and the Representatives shall have received certificates, dated the Closing Date, there shall not have occurred any material adverse change in the financial, economic or political condition of the Province from that set forth in the Registration Statement, the Time of Sale Information Date and the ~~Final Prospectus; and the Underwriters shall have received, on the Closing Date, a certificate dated the~~ Option Closing Date and signed by the ~~Minister of Finance~~ Chief Executive Officer or the Chairman of the ~~Province~~Board of Directors of the Company and the Chief Financial Officer of the Company (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii), (iii) and (iv). (c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement or Prospectus and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statement and the Prospectus, if in the judgment of the Representatives any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price. (d) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its respective officers or directors in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceeding an unfavorable ruling, decision or finding would have a Material Adverse Effect. (e) Each of the representations and warranties of the Company and the Selling Shareholders contained herein shall be true and correct in all material respects at the Closing Date and, with respect to the Option Shares, at the Option Closing Date, as if made at the Closing Date and, with respect to the Option Shares, at the Option Closing Date, and all covenants and agreements herein contained to be performed on the part of the Company and the Selling Shareholders and all conditions herein contained to be fulfilled or complied with by the Company and the Selling Shareholders at or prior to the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with. (f) The Representatives shall have received an opinion, dated the Closing Date and, with respect to the Option Shares, the ~~Deputy Minister of Finance of~~ Option Closing Date, and satisfactory in form and substance to counsel for the ~~Province or another officer of the Ministry of Finance satisfactory~~ Underwriters, from Ice, Xxxxxx, Xxxxxxx & Xxxx, counsel to the ~~Representatives~~ Company and the Selling Shareholders, to the effect set forth in ~~the first clause of this Section 9(b).~~Exhibit B. c(g) The ~~Underwriters~~ Representatives shall have received an opinion, dated the Closing Date and the Option Closing Date, from Xxxxxx, Xxxxxxxxxx & Xxxxxxxxx LLP, counsel to the Underwriters, with respect to the Registration Statement, the Prospectus and this Agreement, which opinion shall be satisfactory in all respects to the Representatives. (h) Concurrently with the execution and delivery of this Agreement, the Accountants shall have furnished to the Representatives and the Board of Directors of the ~~Attorney General~~ Company a "comfort" letter, dated the date of its delivery, addressed to the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province Representatives and in form and substance satisfactory to the Representatives, ~~as Canadian counsel~~ 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 ~~Province~~effect that: i) in their opinion the financial statements and schedules and summary of earnings examined by them and included in the Registration Statement comply as to form in all material respects with the applicable accounting requirements of the Act and the related published Rules and Regulations; ii) on the basis of a reading of the latest available interim financial statements of the Company, inquiries of officials of the Company 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 statement and summary of earnings included in the Registration Statements do not comply as to form in all material respects with the applicable accounting requirements of the Act and the related published Rules and Regulations or any material modifications should be made to such unaudited financial statements 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 short-term indebtedness or long-term debt of the Company or, at the date of the latest available balance sheet read by such accountants, there was any decrease in net current assets, 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 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 net sales or net operating income in the total or per share amounts of 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 iii) 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 Company subject to the internal controls of the Company's accounting system or are derived directly from such records by analysis or computation) with the results obtained from inquiries, a reading of such general accounting records and other procedures specified in such letter and have found such dollar amounts, percentages and other financial information to be in agreement with such results, except as otherwise specified in such letter. At the Closing Date and, as to the Option Shares, the Option Closing Date, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the "comfort" letter from the Accountants, that nothing has come to their attention during the period from the date of the "comfort" letter to a date (specified in the letter) not more than five days prior to the Closing Date and the Option Closing Date which would require any change in their letter dated the date hereof if it were required to be dated and delivered at the Closing Date and the Option Closing Date, to the effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type:. (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance Concurrently with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated at the Closing ~~Date~~Date and, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the ProvinceOption Shares, the ~~Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory~~ Option Closing Date, there shall be furnished to the Representatives ~~as to factual matters. The opinion shall state in effect that on~~ an accurate certificate, dated the ~~basis~~ date of ~~an independent examination of such records~~its delivery, ~~certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion~~ signed by each of the ~~Attorney General~~Chief Executive Officer and the Chief Financial Officer, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to ~~them and they believe that~~ the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinionRepresentatives, to the effect that: (i) ~~The Securities are exempted securities under~~ Each signer of such certificate has carefully examined the ~~Trust Indenture Act of 1939, as amended (~~Registration Statement and the ~~“Trust Indenture Act”),~~ Prospectus and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) to the ~~Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment)~~signer's knowledge, as of the date of ~~this Agreement~~such certificate, ~~contained an untrue statement of a~~ such documents are true and correct in all material ~~fact or omitted~~ respects and do not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not ~~misleading;~~ untrue or misleading and (CB) in the ~~Final Prospectus (other than~~ case of the ~~financial statements~~ certificate delivered at the Closing Date and ~~other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or~~ the Option Closing Date, ~~contained~~ since the Effective Date no event has occurred of which the signer has knowledge as a result of which it is necessary to amend or ~~contains an untrue statement of a material fact or omitted or omits to state a material fact necessary~~ supplement the Prospectus in order to make the statements ~~therein,~~ therein not untrue or misleading in ~~the light~~ any material respect. ii) Each of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of the ~~Province~~ Company contained in this Agreement ~~are~~ were, when originally made, and are, at the time such certificate is dated, true and ~~correct, that~~ correct in all material respects. iii) Each of the ~~Province has complied with all agreements and satisfied all conditions on its part~~ covenants required herein to be performed ~~or satisfied at~~ by the Company on or prior to the ~~Closing Date, that no stop order suspending the effectiveness~~ date of ~~the Registration Statement~~ such certificate has been ~~issued~~ duly, timely and ~~no proceedings for that purpose have been instituted or are contemplated~~ fully performed and each condition herein required to be complied with by the ~~SEC. i) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule~~ Company on or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province shall have furnished to the Underwriters and to counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. k) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The Province will furnish the Underwriters with such conformed copies date of such ~~opinions~~certificate has been duly, ~~certificates, letters~~ timely and documents as the Representatives reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreementfully complied with.

Appears in 1 contract

Samples: Underwriting Agreement (Made2manage Systems Inc)

Conditions of the Obligations of the Underwriters. ~~The respective~~ In ------------------------------------------------- addition to the execution and delivery of the Price Determination Agreement, the obligations of ~~the several Underwriters to purchase and pay for the Securities will be~~ each Underwriter hereunder are subject to the ~~accuracy~~ following conditions: (a) Notification that the Registration Statement has become effective shall be received by PaineWebber Incorporated not later than 5:00 p.m., New York City time, on the date of this Agreement or at such later date and time as shall be consented to in writing by PaineWebber Incorporated and all filings required by Rule 424 of the ~~representations~~ Rules and warranties on the part of the Province herein, to the accuracy of the statements of the representatives of the Province made pursuant to the provisions hereof, to the performance by the Province of its obligations hereunder Regulations and ~~with regard to the Securities and to the following additional conditions precedent:~~Rule 430A shall have been made. a(i) ~~Prior to the Closing Date, no~~ No stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement shall have been issued and no proceedings for that purpose shall ~~have been instituted or~~be pending or threatened by the Commission, to (ii) no order suspending the ~~knowledge~~ effectiveness of the ~~Province~~ Registration Statement or the ~~Representatives,~~ qualifi- cation or registration of the Shares under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by the ~~SEC; and each Issuer Free Writing Prospectus~~Commission or the authorities of any such jurisdiction, to (iii) any request for additional information on the ~~extent required by Rule 433 under~~ part of the ~~Securities Act,~~ staff of the Commission or any such authorities shall have been ~~filed~~ complied with to the ~~SEC under~~ satisfaction of the ~~Securities Act;~~ staff of the Commission or such authorities and (iv) after the ~~Final~~ date hereof no amendment or supplement to the Registration Statement or the Prospectus shall have been filed ~~with the SEC pursuant~~ unless a copy thereof was first submitted to ~~Rule 424~~ PaineWebber Incorporated and PaineWebber Incorporated did not ~~later than 5:00 p.m. New York City time~~object thereto in good faith, ~~on the second business day following the date of this Agreement. b) Subsequent to the execution of this Agreement~~ and ~~prior to~~ PaineWebber Incorporated shall have received certificates, dated the Closing Date, there shall not have occurred any material adverse change in the financial, economic or political condition of the Province from that set forth in the Registration Statement, the Time of Sale Information Date and the ~~Final Prospectus; and the Underwriters shall have received, on the Closing Date, a certificate dated the~~ Option Closing Date and signed by the ~~Minister of Finance~~ Chief Executive Officer or the Chairman of the ~~Province~~Board of Directors of the Company and the Chief Financial Officer of the Company (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii). (c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) neither the Company nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration State- ment and the Prospectus, if in the judgment of PaineWebber Incorporated any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the initial public offering price. (d) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its Subsidiaries or any of their respective officers or directors in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceeding an unfavorable ruling, decision or finding would materially and adversely affect the business, properties, business prospects, condition (financial or otherwise) or results of operations of the Company and its Subsidiaries taken as a whole. (e) Each of the representations and warranties of the Company and the Selling Shareholders contained herein shall be true and correct in all material respects at the Closing Date and, with respect to the Option Shares, at the Option Closing Date, as if made at the Closing Date and, with respect to the Option Shares, at the Option Closing Date, and all covenants and agreements herein contained to be performed on the part of the Company and the Selling Shareholders and all conditions herein contained to be fulfilled or complied with by the Company and the Selling Shareholders at or prior to the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with. (f) PaineWebber Incorporated shall have received opinions, each dated the Closing Date and, with respect to the Option Shares, the ~~Deputy Minister of Finance of~~ Option Closing Date, and satisfactory in form and substance to counsel for the ~~Province or another officer of the Ministry of Finance satisfactory~~ Underwriters, from Kramer, Levin, Naftalis, Nessen, Kamin & Frankel, counsel to the ~~Representatives~~ Company, to the effect set forth xx Xxhixxx X xnd from _______________, counsel to the Selling Shareholders, to the effect set forth in ~~the first clause of this Section 9(b). c~~Exhibit E. (g) ~~The Underwriters~~ PaineWebber Incorporated shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Provinceopinion, dated the Closing Date and the Option Closing Date, from Paul, Weiss, Rifkind, Wharton & Garrison, counsel to the ~~effect that under~~ Underwrxxxxs, with respect to xxx Xxgisxxx tion Statement, the ~~laws of British Columbia~~ Prospectus and ~~Canada and subject~~ this Agreement, which opinion shall be satisfactory in all respects to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the SecuritiesPaineWebber Incorporated. (iih) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on On the date of ~~issue of~~ the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency AgreementProspectus, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters Accountants shall have ~~received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel~~ furnished to ~~the Underwriters, given in respect of the laws of British Columbia and Canada~~PaineWebber Incorporated a letter, dated the ~~Closing Date~~date of its delivery, as addressed to ~~the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications~~ PaineWebber Incorporated and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to ~~them~~ PaineWebber Incorporated, confirming that they are independent accountants with respect to the Company as required by the Act and ~~they believe that~~ the ~~Representatives are justified~~ Rules and Regulations and with respect to the financial and other statistical and numerical information contained in ~~relying thereon. e) The Underwriters~~ the Registration Statement. At the Closing Date and, as to the Option Shares, the Option Closing Date, the Accountants shall have ~~received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province~~furnished to PaineWebber Incorporated a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (specified in the letter) not more than five days prior to the Closing Date and the Option Closing Date which would require any change in their letter dated the date of the Prospectus, if it were required to be dated and delivered at the Closing Date and the Option Closing Date. (i) At the Closing Date and, as to the Option Shares, the Option Closing Date, ~~subject~~ there shall be furnished to ~~such qualifications~~ PaineWebber Incorporated an accurate certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and ~~based upon such assumptions as are customary~~ the Chief Financial Officer of the Company, in ~~the United States in respect of such opinion~~form and substance satisfactory to PaineWebber Incorporated, to the effect that: (i) ~~The Securities are exempted securities under~~ Each signer of such certificate has carefully examined the ~~Trust Indenture Act of 1939, as amended (~~Registration Statement and the ~~“Trust Indenture Act”),~~ Prospectus and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) ~~the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment),~~ as of the date of ~~this Agreement~~such certificate, ~~contained an untrue statement of a~~ such documents are true and correct in all material ~~fact or omitted~~ respects and do not omit to state a material fact required to be stated therein or necessary in order to make the statements therein not ~~misleading;~~ untrue or misleading and (B) since the ~~Time~~ Effective Date, no event has occurred as a result of ~~Sale Information (other than~~ which it is necessary to amend or supplement the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, contained an untrue statement of a material fact or omitted to state a material fact necessary Prospectus in order to make the statements ~~therein,~~ therein not untrue or misleading in ~~the light~~ any material respect. (ii) Each of the ~~circumstances under which they were~~ representations and warranties of the Company contained in this Agreement were, when originally made, ~~not misleading;~~ and are, at the time such certificate is delivered, true and correct in all material respects. (iii) Each of the covenants required herein to be performed by the Company on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with. (Cj) At the ~~Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom~~Closing Date and, as to ~~which such counsel has not been requested to comment)~~the Option Shares, ~~as of its date or~~ the Option Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters there shall have ~~received~~ been furnished to PaineWebber Incorporated an ~~opinion of Linklaters LLP, United Kingdom counsel for the Province~~accurate certificate, dated the ~~Closing Date~~date of its delivery, ~~subject~~ signed by the Committee on behalf of each of the Selling Shareholders, in form and substance satisfactory to ~~such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion~~PaineWebber Incorporated, to the effect that the ~~statements in~~ representations and warranties of each of the ~~Time of Sale Information,~~ Selling Shareholders contained herein are true and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize correct in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), on and ~~(iv) (but only~~ as of the date of ~~this Agreement~~ such certificate as ~~to clause (A))~~ if made on and as of ~~paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in~~ the ~~United States in respect~~ date of such ~~opinions. In considering such opinion~~certificate, ~~Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian~~ and ~~Canadian law and procedure. h) The Underwriters shall have received a certificate~~ each of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations covenants and ~~warranties of the Province in this Agreement are true and correct, that the Province has complied with all agreements and satisfied all~~ conditions ~~on its part~~ required herein to be performed or ~~satisfied at~~ complied with by the Selling Shareholders on or prior to the date of such certificate has been duly, timely and fully performed or complied with. (k) On or prior to the Closing Date, ~~that no~~ PaineWebber Incorporated shall have received the executed agreements referred to in Section 5(m). (l) The Shares shall be qualified for sale in such states as PaineWebber Incorporated may reasonably request, each such qualification shall be in effect and not subject to any stop order ~~suspending~~ or other proceeding on the ~~effectiveness of~~ Closing Date and the ~~Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the SEC~~Option Closing Date. i(m) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province shall have furnished to the Underwriters and to counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. k) Subsequent to the execution of this Agreement and prior Prior to the Closing Date, ~~there~~ the Shares shall ~~not have occurred any downgrading, nor shall any notice~~ have been ~~given~~ duly authorized for listing by the [Nasdaq National Market] upon official notice of ~~any intended or potential downgrading or of any placing on credit watch with negative implications~~issuance. (n) The Company and the Selling Shareholders shall have furnished to PaineWebber Incorporated such certificates, in ~~the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions~~addition to those specifically mentioned herein, ~~certificates, letters and documents will be in compliance with the provisions hereof only if they are~~ as PaineWebber Incorporated may have reasonably ~~satisfactory~~ requested as to the ~~Representatives. The Province will furnish the Underwriters with such conformed copies of such opinions, certificates, letters~~ accuracy and documents as the Representatives reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or completeness at ~~any time prior to,~~ the Closing Date and the Option Closing Date of any statement in the Registration Statement or the Prospectus as to the accuracy at the Closing Date and the Option Closing Date of the representations and warranties of the Company and the Selling Shareholders herein, as to the performance by the ~~Representatives on behalf~~ Company and the Selling Shareholders of its and their respective obligations hereunder, or as to the fulfillment of the ~~Underwriters, without any liability on the part of any Underwriter~~ conditions concurrent and precedent to the ~~Province or~~ obligations hereunder of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this AgreementPaineWebber Incorporated.

Appears in 1 contract

Samples: Underwriting Agreement (Noodle Kidoodle Inc)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of ~~the several Underwriters to purchase and pay for the Securities will be~~ each Underwriter hereunder are subject to the ~~accuracy~~ following conditions: (a) Notification that the Registration Statement has become effective shall be received by the Representatives not later than 5:00 P.M., New York City time, on the date of this Agreement or at such later date and time as shall be consented to in writing by the Representatives and all filings required by Rules 424, 430A, 430B and 430C of the ~~representations~~ Rules and ~~warranties~~ Regulations shall have been made. All material required to be filed by the Company pursuant to Rule 433(d) under the Act shall have been filed with the Commission within the applicable time period prescribed for such filing by Rule 433 under the Act. If the Company has elected to rely upon Rule 462(b), the registration statement filed under Rule 462(b) shall have become effective by 10:00 P.M., Washington, D.C. time, on the ~~part~~ date of the Province herein, to the accuracy of the statements of the representatives of the Province made pursuant to the provisions hereof, to the performance by the Province of its obligations hereunder and with regard to the Securities and to the following additional conditions precedent:this Agreement. a(i) ~~Prior to the Closing Date, no~~ No stop order suspending the effectiveness of the Registration Statement, ~~as amended from time to time,~~ the Prospectus or any Issuer Free Writing Prospectus shall have been issued and no proceedings for that purpose shall ~~have been instituted or~~be pending or threatened by the Commission, to (ii) no order suspending the ~~knowledge~~ effectiveness of the ~~Province~~ Registration Statement or the ~~Representatives,~~ qualification or registration of the Shares under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by the ~~SEC; and each Issuer Free Writing Prospectus~~Commission, to (iii) any request for additional information on the ~~extent required by Rule 433 under~~ part of the ~~Securities Act,~~ staff of the Commission shall have been ~~filed~~ complied with to the ~~SEC under~~ satisfaction of the ~~Securities Act; and~~ staff of the ~~Final~~ Commission, (iv) after the date hereof no amendment or supplement to the Registration Statement, the Pricing Prospectus or the Prospectus shall have been filed ~~with~~ unless a copy thereof was first submitted to the ~~SEC pursuant~~ Representatives and the Representatives did not reasonably object thereto in good faith, and (v) the Representatives shall have received certificates, dated the Closing Date and, if later, the Option Closing Date and signed by the Chief Executive Officer and the Chief Financial Officer of the Company (who may, as to ~~Rule 424 not later than 5:00 p.m. New York City time~~proceedings threatened, on rely upon the ~~second business day following~~ best of their information and belief), to the ~~date~~ effect of clauses (i), (ii) and (iii) of this ~~Agreement~~paragraph. b(c) ~~Subsequent to~~ Since the ~~execution~~ respective dates as of ~~this Agreement and prior to the Closing Date, there shall not have occurred any material adverse change in the financial, economic or political condition of the Province from that set forth~~ which information is given in the Registration Statement, the ~~Time of Sale Information~~ Pricing Prospectus and the ~~Final~~ Prospectus; , (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Company or any of its Subsidiaries, whether or not arising from transactions in the ordinary course of business, in each case other than as described in or contemplated by the Registration Statement, the Pricing Prospectus and the Prospectus, and (ii) the Company shall not have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not described in the Registration Statement, the Pricing Prospectus and the Prospectus, if in the judgment of the Representatives any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the public offering price. (d) Since the respective dates as of which information is given in the Registration Statement, the Pricing Prospectus and the Prospectus, there shall have ~~received~~been no litigation or other proceeding instituted against the Company, on any of its Subsidiaries, or any of their officers or directors in their capacities as such, before or by any federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceeding an unfavorable ruling, decision or finding would, in the judgment of the Representatives, have a Material Adverse Effect or if, in the judgment of the Representatives, any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Shares by the Underwriters at the public offering price. (e) Each of the representations and warranties of the Company contained herein shall be true and correct in all respects (in the case of any representation and warranty containing a materiality or Material Adverse Effect qualification) or in all material respects at the Closing Date and, with respect to the Option Shares, at the Option Closing Date, ~~a certificate~~ and all covenants and agreements contained herein to be performed on the part of the Company and all conditions contained herein to be fulfilled or complied with by the Company at or prior to the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with. (f) The Representatives shall have received an opinion, dated the Closing Date and, with respect to the Option Shares, the Option Closing Date, in form and substance previously agreed to by Xxxxxxx & Company, LLC from Ropes & Xxxx LLP, counsel to the Company. (g) The Representatives shall have received an opinion, dated the Closing Date and ~~signed by~~ the ~~Minister of Finance of~~ Option Closing Date, from Xxxxxxx Procter LLP, counsel to the ~~Province~~Underwriters, with respect to the Registration Statement, the ~~Deputy Minister of Finance of the Province or another officer of the Ministry of Finance~~ Prospectus and this Agreement, which opinion shall be satisfactory ~~to the Representatives to the effect set forth~~ in the first clause of this Section 9(b). c) The Underwriters shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory all respects to the Representatives, as Canadian counsel to the Province, dated the Closing Date, to the effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (iih) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance Concurrently with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this ~~Agreement and the Fiscal Agency~~ Agreement, the ~~issuance~~ Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, addressed to the ~~Securities~~ Representatives and in form and substance satisfactory to the Representatives, confirming that they are independent accountants with respect to the Company and its Subsidiaries as required by the Act and the ~~performance~~ Exchange Act and the Rules and Regulations and with respect to certain financial and other statistical and numerical information contained or incorporated by reference in the ~~Province~~ Registration Statement. At the Closing Date and, as to the Option Shares, the Option Closing Date, the Accountants shall have furnished to the Representatives a letter, dated the date of its ~~obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against~~ delivery, which shall confirm, on the ~~Province in the Supreme Court~~ basis of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought a review in accordance with the ~~Crown Proceeding Act~~ procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of the letter referred to in the prior sentence to a date (~~British Columbia~~specified in the letter) ~~and within applicable limitation periods, whether or~~ not ~~a party~~ more than three days prior to the ~~proceedings or~~ Closing Date and the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated the Option Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, ~~Canadian counsel~~ which would require any change in their letter dated the date hereof if it were required to be dated and delivered at the Closing Date and the Option Closing Date. (i) At the Closing Date and, as to the ~~Province~~Option Shares, is the Option Closing Date, there shall be furnished to the Representatives a certificate, dated the date of its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to ~~them and they believe that~~ the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinionRepresentatives, to the effect that, to such individual's knowledge: (i) ~~The Securities are exempted securities~~ Each signer of such certificate has carefully examined the Registration Statement, the Pricing Prospectus, the Prospectus (including any documents filed under the ~~Trust Indenture~~ Exchange Act ~~of 1939, as amended (~~and deemed to be incorporated by reference into the ~~“Trust Indenture Act”),~~ Pricing Prospectus and ~~no qualification of an indenture in respect~~ the Prospectus) and each of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that Issuer Free Writing Prospectuses (A) ~~the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment),~~ as of the date of ~~this Agreement~~such certificate, ~~contained an untrue statement of a~~ such documents are true and correct in all material ~~fact or omitted~~ respects and do not omit to state a material fact required to be stated therein or necessary in order to make the statements therein not untrue or misleading; , (B) the ~~Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom~~Pricing Prospectus, as ~~to which such counsel has not been requested to comment)~~supplemented by each Issuer Free Writing Prospectus listed on Schedule III(a) and III(b) hereto, as of the Applicable Time when considered together with and as supplemented by the statements under the caption "Description of ~~Sale~~Capital Stock" in the Prospectus, ~~contained an~~ did not contain any untrue statement of a material fact or ~~omitted~~ omit to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not untrue or misleading~~; or~~ , and (C) in the ~~Final Prospectus (other than~~ case of the ~~financial statements~~ certificate delivered at the Closing Date and ~~other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or~~ the Option Closing Date, ~~contained~~ since the Effective Date no event has occurred as a result of which it is necessary to amend or ~~contains an untrue statement of a material fact or omitted or omits to state a material fact necessary~~ supplement the Prospectus in order to make the statements ~~therein, in the light of the circumstances under which they were made,~~ therein not untrue or misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f(ii) ~~The Underwriters shall have received an opinion~~ Each of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of the ~~Province~~ Company contained in this Agreement ~~are~~ were, when originally made, and are, at the time such certificate is delivered, true and ~~correct, that~~ correct in all respects (in the ~~Province has complied with~~ case of any representation and warranty containing a materiality or Material Adverse Effect qualification) or in all ~~agreements and satisfied all conditions on its part~~ material respects. (iii) Each of the covenants required to be performed by the Company herein on or prior to the date of such certificate has been duly, timely and fully performed and each condition herein required to be satisfied at or fulfilled on or prior to the date of such certificate has been duly, timely and fully satisfied or fulfilled. (j) On or prior to the Closing Date, ~~that no~~ the Representatives shall have received the executed agreements referred to in Section 4(m). (k) The Shares shall be qualified for sale in such jurisdictions as the Representatives may reasonably request and each such qualification shall be in effect and not subject to any stop order ~~suspending~~ or other proceeding on the ~~effectiveness of~~ Closing Date or the ~~Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the SEC~~Option Closing Date. i(l) Prior to the Closing Date, the Company shall have filed a notice of listing additional shares with the NASDAQ. (m) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province Company shall have furnished to the ~~Underwriters and~~ Representatives such certificates, in addition to ~~counsel for the Underwriters such further certificates and documents~~ those specifically mentioned herein, as the Representatives ~~and such counsel~~ may have reasonably ~~request. k) Subsequent~~ requested as to the ~~execution of this Agreement~~ accuracy and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The Province will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or completeness at ~~any time prior to,~~ the Closing Date and the Option Closing Date of any statement in the Registration Statement, the Pricing Prospectus or the Prospectus, as to the accuracy at the Closing Date and the Option Closing Date of the representations and warranties of the Company herein, as to the performance by the ~~Representatives on behalf~~ Company of its obligations hereunder, or as to the fulfillment of the ~~Underwriters, without any liability on the part of any Underwriter~~ conditions concurrent and precedent to the ~~Province or~~ obligations hereunder of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this AgreementRepresentatives.

Appears in 1 contract

Samples: Underwriting Agreement (Btu International Inc)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the ~~several~~ Underwriters to purchase and pay for the ~~Securities~~ Notes will be subject to the ~~accuracy~~ accuracy, as of the date hereof and as of the Closing Date, of the representations and warranties on of Collegiate Funding and the ~~part of the Province~~ Sponsor herein, to the accuracy of the written statements of officers of Collegiate Funding, the ~~representatives of~~ Sponsor, the ~~Province~~ Seller, the Master Servicer, the Administrator, the Sub-Servicer, the Custodian, the Originating Agent, the Delaware Trustee, the Indenture Trustee and the Eligible Lender Trustee made pursuant to the provisions ~~hereof~~of this Section, to the performance by Collegiate Funding and the ~~Province~~ Sponsor of ~~its~~ their obligations hereunder ~~and with regard to the Securities~~ and to the following additional conditions precedent: (a) ~~Prior~~ The Underwriters shall have received a letter, of Ernst & Young, LLP, dated on or prior to the date hereof, confirming that such accountants are independent public accountants within the meaning of the Act, and substantially in the form of the drafts to which the Underwriters have previously agreed and otherwise in form and substance satisfactory to the Underwriters and counsel for the Underwriters (i) regarding certain numerical information contained in the Prospectus and (ii) relating to certain agreed-upon procedures. (b) The Prospectus shall have been filed with the Commission in accordance with the Act and Section 5(a) hereof. On or prior to the Closing Date, no stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Province or the Representatives~~Sponsor, shall be contemplated by the SEC; and each Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act, shall have been filed with the SEC under the Securities Act; and the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this AgreementCommission. b(c) Subsequent to the execution and delivery of this ~~Agreement and prior to the Closing Date~~Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the Financed Student Loans or particularly the business or properties of the Trust, Collegiate Funding, the Sponsor, the Seller, the Master Servicer, the Sub-Servicer, the Custodian, the Originating Agent, the Administrator or the LIBOR Swap Counterparties, which, in the sole discretion of the Underwriters, materially impairs the investment quality of the Notes; (ii) any downgrading in the rating of any securities of Collegiate Funding, the Sponsor, the Seller, the Master Servicer, the Sub-Servicer, the Custodian or the Originating Agent, 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 such debt securities (other than an 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, American Stock Exchange, or NASDAQ National Market, or any setting of minimum or maximum prices for trading on such exchange; (iv) any banking moratorium declared by Federal or New York authorities; (v) any outbreak or escalation of hostilities in which the United States is involved, any declaration of war or national emergency by Congress, any material ~~adverse change~~ disruption in the ~~financial~~financial markets or any other substantial national or international calamity or emergency if, ~~economic or political condition~~ in the sole judgment of the ~~Province from that set forth in~~ Underwriters, the effect of any such outbreak, escalation, declaration, material disruption, calamity or emergency makes it impractical or inadvisable to proceed with the public offering or the delivery of the Notes as contemplated by the Registration Statement, as amended as of the ~~Time~~ date hereof; (vi)a material disruption has occurred in securities settlement or clearance services in the United States; or (vii) any event or development which makes any statement made in the Registration Statement or Prospectus untrue or which, in the opinion of ~~Sale Information~~ the Sponsor or Collegiate Funding and ~~the Final Prospectus; and~~ their counsel or the Underwriters ~~shall have received~~and their counsel, on requires the filing of any amendment to or change in the Registration Statement or Prospectus in order to state a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Registration Statement or Prospectus to reflect such event or development would, in the opinion of the Representatives, materially adversely affect the market for the Notes. (d) On the Closing Date, ~~a certificate dated the Closing Date and signed by the Minister of Finance~~ each of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth in the first clause of this Section 9(b). c) The Underwriters shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Province, dated the Closing Date, to the effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (ii) This Agreement Basic Documents and the ~~Fiscal Agency Agreement~~ Notes shall have been duly authorized, executed and delivered by the ~~Province and each is a valid and legally binding agreement of the Province~~parties thereto, ~~except as rights to indemnity and contribution hereunder may~~ shall be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and ~~effect~~effect and no default shall exist thereunder, and the Indenture Trustee and the Underwriters shall each have received a fully executed copy thereof or, with respect to the Notes, a conformed copy thereof. The Basic Documents and the Notes shall be substantially in the forms heretofore provided to the Underwriters. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. de) The Underwriters shall have received an opinion of ~~Oxxxx~~LeClair Ryan, ~~Hxxxxx & Harcourt LLP~~dated the Closing Date and satisfactory in form and suxxxxxxx xx xhe Underwriters, ~~Canadian~~ to the effect that: (i) Each of Collegiate Funding, the Master Servicer and the Administrator has been duly formed and is validly existing as a limited liability company in good standing under the laws of its jurisdiction of organization, with full power and authority to own its properties and conduct its business, and is duly qualified to transact business and is in good standing in each jurisdiction in which its failure to qualify would have a material adverse effect upon transactions contemplated by the Basic Documents and its business or the ownership of its property. (ii) Each of the Basic Documents to which Collegiate Funding, the Master Servicer or the Administrator is a party is the legal, valid and binding obligation of Collegiate Funding, the Master Servicer and the Administrator, as applicable, enforceable against Collegiate Funding, the Master Servicer and the Administrator in accordance with its terms. (iii) Neither the execution, delivery and performance by Collegiate Funding, the Master Servicer or the Administrator, respectively, of the Basic Documents to which it is a party, nor the consummation by Collegiate Funding, the Master Servicer or the Administrator, as applicable, of the transactions contemplated thereby, will conflict with or result in a breach 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 of the property or assets of Collegiate Funding, the Master Servicer or the Administrator, as applicable, pursuant to the terms of the formation documents of Collegiate Funding, the Master Servicer or the Administrator, as applicable, or any statute, rule, regulation or order of any governmental agency or body, or any court having jurisdiction over Collegiate Funding, the Master Servicer or the Administrator, as applicable, or its properties, or any agreement or instrument known to such counsel after due investigation to which Collegiate Funding, the Master Servicer or the Administrator, as applicable, is a party or by which Collegiate Funding, the Master Servicer or the Administrator, as applicable, or any of its properties is bound. (iv) No authorization, license, approval, consent or order of, or filing with, any court or governmental agency or authority is necessary in connection with the execution, delivery and performance by Collegiate Funding, the Master Servicer or the Administrator, respectively, of the Basic Documents to which it is a party, except for those which have been obtained and except for those that may be required under state securities or Blue Sky laws. (v) There are no legal or governmental proceedings known to such counsel to be pending to which Collegiate Funding, the Master Servicer or the Administrator is a party or of which any property of Collegiate Funding, the Master Servicer or the Administrator is the subject, nor are any such proceedings known to such counsel to be threatened or contemplated by governmental authorities or threatened by others (i) asserting the invalidity of all or any part of the Basic Documents to which Collegiate Funding, the Master Servicer or the Administrator is a party, or (ii) that could materially adversely affect the ability of Collegiate Funding, the Master Servicer or the Administrator to perform its obligations under Basic Documents to which it is a party. Such opinion may contain such assumptions, qualifications and limitations as are customary in opinions of this type and are reasonably acceptable to counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated the Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, ~~Oxxxx, Hxxxxx & Harcourt LLP~~ such counsel may ~~rely upon a certificate (which may be unaudited)~~ state that they express no opinion as to the laws of any jurisdiction other than the federal law of the ~~Minister~~ United States of ~~Finance~~ America (excluding federal securities and tax laws) and the laws of the ~~Province, the Deputy Minister~~ State of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereonVirginia. e(f) The Underwriters shall have received ~~the~~ an opinion of ~~Sxxxxxxx~~ Stroock & ~~Sterling~~ Stroock & Lavan LLP, ~~United States~~ special counsel ~~for~~ to the ~~Province~~Sponsor and the Seller, dated the ~~Closing Date, subject~~ Xxxxxng Date and satisfactory in form and substance to ~~such qualifications and based upon such assumptions as are customary in~~ the ~~United States in respect of such opinion~~Underwriters, to the effect that: (i) The ~~Securities are exempted securities~~ Sponsor has been duly formed and is validly existing as a limited liability company in good standing under the ~~Trust Indenture Act~~ laws of ~~1939~~its jurisdiction of organization, ~~as amended (~~with full power and authority to own its properties, conduct its business and consummate the ~~“Trust Indenture Act”), and no qualification of an indenture in respect of~~ transactions contemplated by the ~~Securities under the Trust Indenture Act~~ Basic Documents to which it is ~~required for the issuance, sale and delivery of the Securities~~a party. (ii) ~~The statements~~ Each of the Basic Documents to which the Sponsor is a party is the legal, valid and binding obligation of the Sponsor enforceable against the Sponsor in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to thereinaccordance with its terms. (iii) ~~The statements~~ Each of the Basic Documents to which the Seller is a party is the legal, valid and binding obligation of the Seller enforceable against the Seller in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to thereinaccordance with its terms. (iv) ~~Based upon such counsel’s participation~~ When the Notes have been duly executed, authenticated and delivered in ~~conferences~~ accordance with ~~representatives of~~ the ~~Province, counsel~~ Indenture and paid for ~~the Province and their examination of specified documents, no facts have come~~ pursuant to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, ~~contained an untrue statement of a material fact or omitted~~ the Notes will be validly issued and outstanding, entitled to ~~state a material fact required to be stated therein or necessary to make~~ the statements therein not misleading; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as benefits of the ~~Time of Sale, contained an untrue statement of a material fact or omitted to state a material fact necessary~~ Indenture and enforceable in ~~order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or~~ accordance with their terms. (Cv) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the The Registration Statement ~~and~~ is effective under the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may beand, to the best of ~~his or her knowledge after reasonable investigation~~such counsel's knowledge, shall state that the representations and warranties of the Province in this Agreement are true and correct, that the Province has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date, that no stop order suspending the effectiveness of the Registration Statement or any part thereof or any amendment thereto has been issued under the Act and no ~~proceedings~~ proceeding for that purpose ~~have~~ has been instituted or ~~are contemplated~~ threatened by the ~~SEC~~Commission. i(vi) The ~~purchase~~ Sponsor is not, and will not as a result of the offer and sale of the ~~Securities~~ Notes as contemplated in ~~accordance with~~ the ~~provisions hereof shall not~~ Prospectus and this Agreement become, required to be ~~prohibited by any statute~~registered as an "investment company" as defined in the Investment Company Act of 1940, ~~order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada,~~ as amended (the ~~United States of America, the Province or the State of New York~~"Investment Company Act"). j(vii) The ~~Province shall have furnished~~ Trust is not, and will not as a result of the offer and sale of the Notes as contemplated in the Prospectus and this Agreement become, required to be registered under the Investment Company Act. (viii) The Indenture has been duly qualified under the Trust Indenture Act. (ix) The statements in the Prospectus Supplement under the headings "SUMMARY OF TERMS--Federal income tax consequences," "Certain Federal Income Tax Considerations," "Summary of Terms--ERISA considerations," and "ERISA Considerations," and in the Base Prospectus under the headings "Federal Income Tax Consequences," "ERISA Considerations" and "Description of the Federal Family Education Loan Program," to the ~~Underwriters and to counsel for the Underwriters such further certificates and documents as the Representatives and~~ extent that they constitute statements of matters of law or legal conclusions with respect thereto, have been reviewed by such counsel ~~reasonably request~~and accurately describe the matters discussed therein. k) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The Province will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.

Appears in 1 contract

Samples: Underwriting Agreement (Collegiate Funding Services Inc)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the several Underwriters to purchase and pay for the Offered Securities will be subject to the accuracy of the representations and warranties on the part of the ~~Province~~ Company herein, to the accuracy of the statements of ~~the representatives~~ officers of the ~~Province~~ Company made pursuant to the provisions hereof, to the performance by the ~~Province~~ Company of its obligations hereunder ~~and with regard to the Securities~~ and to the following additional conditions precedent: (a) ~~Prior~~ The Prospectus as amended or supplemented in relation to the ~~Closing Date~~applicable Offered Securities shall have been filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing (without reliance on Rule 424(b)(8)) by the Rules and Regulations and in accordance with Section 5(a) hereof; if the Company has elected to rely upon Rule 462(b), the Rule 462(b) Registration Statement shall have become effective by 10:00 p.m., Washington, D.C. time, on the date hereof; no stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement or any part thereof shall have been issued and no ~~proceedings~~ proceeding for that purpose shall have been ~~instituted or,~~ initiated or to the knowledge of the ~~Province or the Representatives, shall be contemplated~~ Company threatened by the ~~SEC~~Commission; and ~~each Issuer Free Writing Prospectus, to~~ all requests for additional information on the ~~extent required by Rule 433 under~~ part of the ~~Securities Act,~~ Commission shall have been filed with the SEC under the Securities Act; and the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this Agreementcomplied with. (b) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any material adverse change in the financial, economic or political condition of the Province from that set forth in the Registration Statement, the Time of Sale Information and the Final Prospectus; and the Underwriters shall have received, on the Closing Date, a certificate dated the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth in the first clause of this Section 9(b). c) The Underwriters shall have received ~~an opinion of~~ from Deloitte & Touche LLP a comfort letter dated the ~~Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province,~~ date hereof and a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Province, bring-down comfort letter dated the Closing Date, in form and content satisfactory to the ~~effect~~ Underwriters and their counsel, acting reasonably, containing statements and information of the type ordinarily included in accountants’ long-form comfort letters to underwriters with respect to the financial statements and other financial information of the Company and its subsidiaries included in the Disclosure Package and the Preliminary Prospectus; provided that ~~under~~ the ~~laws of British Columbia and Canada and subject~~ letter delivered on the Closing Date shall use a “cut-off” date no more than three business days prior to ~~such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type:~~the Closing Date. (c) Subsequent to the Applicable Time, there shall not have been (i) ~~The Province~~ any change, or any development or event involving a prospective change, in the financial condition, business, properties or results of operations of the Company and its subsidiaries taken as a whole, which, in the judgment of the Representatives, is material and adverse and makes it impractical or inadvisable to proceed with completion of the offering or the sale of and payment for the Offered Securities; (ii) any downgrading in the rating of any debt securities or preferred stock of the Company by any “nationally recognized statistical rating organization” (as such term is defined in Section 3 of the Exchange Act), or any public announcement that any such organization has ~~full power~~ under surveillance or review its rating of any debt securities or preferred stock of the Company (other than an announcement with positive implications of a possible upgrading, and ~~authority~~ no implication of a possible downgrading, of such rating); (iii) any material 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; (iv) any suspension of trading of any securities of the Company on any exchange or in the over-the-counter market; (v) any banking moratorium declared by U.S. Federal or New York authorities; (vi) any material disruption in settlements of securities or clearance services in the United States; or (vii) any attack on, or outbreak or escalation of hostilities or act of terrorism involving, the United States, any declaration of war by the United States Congress or any other substantial national or international calamity or emergency if, in the judgment of the Representatives, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to ~~execute~~ proceed with completion of the offering or sale of and ~~deliver this Agreement and to issue and sell~~ payment for the Offered Securities. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an ~~opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada~~opinion, dated the Closing Date, ~~as to the matters specified in subdivisions (i) through (vii)~~ of ~~paragraph (c)~~ Xxxxxxx X. Xxx, Chief Corporate Counsel and Corporate Secretary of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the RepresentativesBerkshire Hathaway Energy, as appointed counsel for the ~~case may be~~Company, ~~Canadian counsel to~~ substantially in the ~~Province, is in~~ form ~~and substance satisfactory to them and they believe that the Representatives are justified in relying thereon~~of Exhibit A hereto. (e) The Underwriters shall have received ~~the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province~~an opinion, dated the Closing Date, ~~subject~~ of Xxxxxxx Coie LLP, special counsel to ~~such qualifications and based upon such assumptions as are customary~~ the Company, substantially in the ~~United States in respect~~ form of such opinion, to the effect that: (i) The Securities are exempted securities under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the SecuritiesExhibit B hereto. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received ~~an opinion of Linklaters~~ from Xxxxxx & Xxxxxxx LLP, ~~United Kingdom~~ counsel for the ~~Province~~Underwriters, such opinion or opinions, dated the Closing Date, ~~subject~~ in form and substance satisfactory to the Underwriters, and the Company shall have furnished to such ~~qualifications and based~~ counsel such documents as they request for the purpose of enabling them to pass upon such ~~assumptions~~ matters. In rendering such opinion or opinions, Xxxxxx & Xxxxxxx LLP may rely as ~~are customary in the United Kingdom in respect of such opinion,~~ to the ~~effect that~~ incorporation of the ~~statements in~~ Company and all other matters governed by Oregon law upon the ~~Time~~ opinion of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters Xxxxxxx Coie LLP referred to ~~therein, fairly summarize in all material respects the legal matters referred to therein~~above. (g) The Underwriters shall have received ~~an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters~~a certificate, dated the Closing Date, ~~as to the matters specified in subdivisions (i), and (iv) (but only as~~ of the ~~date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications~~ President or any Vice President and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a ~~certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province~~ principal financial or ~~another~~ accounting officer of the ~~Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date,~~ Company in which such ~~Minister, Deputy Minister or other officer, as the case may be~~officers, to the best of ~~his or her~~ their knowledge after reasonable investigation, shall state ~~that~~ that: (i) the representations and warranties of the ~~Province~~ Company in this Agreement are true and correct, or true and correct in all material respects where such representations and warranties are not qualified by materiality or Material Adverse Effect and (ii) that the ~~Province~~ Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder at or prior to the Closing Date; and (iii) that, ~~that no stop order suspending~~ subsequent to the ~~effectiveness~~ date of the ~~Registration Statement~~ most recent financial statements in, or incorporated by reference in, the Preliminary Prospectus, there has been ~~issued and~~ no proceedings for that purpose have been instituted or are contemplated by the SEC. i) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province shall have furnished to the Underwriters and to counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. k) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any downgradingmaterial adverse change, nor ~~shall~~ any ~~notice have been given of any intended~~ development or ~~potential downgrading or of any placing on credit watch with negative implications~~event involving a prospective material adverse change, in the ~~ratings accorded the debt securities~~ financial condition, business or results of operations of the ~~Province by any nationally recognized statistical rating agency~~ Company and its subsidiaries taken as a whole except as set forth in the ~~United States. All~~ Disclosure Package and the Prospectus or as described in such ~~opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives~~certificate. The ~~Province~~ Company will (i) furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the ~~Representatives~~ Underwriters reasonably request. If The Underwriters may waive compliance with any ~~of the above~~ conditions ~~shall not have been fulfilled as reasonably contemplated herein, this Agreement and all~~ to their obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreementhereunder.

Appears in 1 contract

Samples: Underwriting Agreement (Pacificorp /Or/)

Conditions of the Obligations of the Underwriters. ~~The respective~~ In addition to the execution and delivery of the Price Determination Agreement, the obligations of ~~the several Underwriters to purchase and pay for the Securities will be~~ each Underwriter hereunder are subject to the ~~accuracy~~ following conditions: (a) Notification that registration statement (Registration No. 333- _________) on Form S-3 has become effective shall be received by PaineWebber not later than 5:00 p.m., New York City time, on the date of this Agreement or at such later date and time as shall be consented to in writing by PaineWebber and all filings required by Rule 424 of the ~~representations~~ Rules and warranties on the part of the Province herein, to the accuracy of the statements of the representatives of the Province made pursuant to the provisions hereof, to the performance by the Province of its obligations hereunder Regulations and ~~with regard to the Securities and to the following additional conditions precedent:~~Rule 430A shall have been made. a(i) ~~Prior to the Closing Date, no~~ No stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statements shall have been issued and no proceedings for that purpose shall ~~have been instituted or~~be pending or threatened by the Commission, to (ii) no order suspending the ~~knowledge~~ effectiveness of the ~~Province~~ Registration Statements or the ~~Representatives,~~ qualification or registration of the Units under the securities or Blue Sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by the ~~SEC; and each Issuer Free Writing Prospectus~~Commission or the authorities of any such jurisdiction, to (iii) any request for additional information on the ~~extent required by Rule 433 under~~ part of the ~~Securities Act,~~ staff of the Commission or any such authorities shall have been ~~filed~~ complied with to the ~~SEC under~~ satisfaction of the ~~Securities Act;~~ staff of the Commission or such authorities and (iv) after the ~~Final~~ date hereof no amendment or supplement to the Registration Statements or the Prospectus shall have been filed unless a copy thereof was first submitted to PaineWebber and PaineWebber did not object thereto in good faith, and PaineWebber shall have received certificates, dated the Closing Date and the Option Closing Date and signed by the Chief Executive Officer or the Chairman of the Board of Directors of the General Partner and the Vice President of Finance of the General Partner (who may, as to proceedings threatened, rely upon the best of their information and belief), to the effect of clauses (i), (ii) and (iii). (c) Since the respective dates as of which information is given in the Registration Statements and the Prospectus, (i) there shall not have been, and no development shall have occurred which could reasonably be expected to result in, a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Partnership and its Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statements and the Prospectus and (ii) neither the Partnership nor any of its Subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the ~~SEC~~ Registration Statements and the Prospectus, if in the judgment of PaineWebber any such development makes it impracticable or inadvisable to consummate the sale and delivery of the Units by the Underwriters at the public offering price. (d) Since the respective dates as of which information is given in the Registration Statements and the Prospectus, there shall have been no litigation or other proceeding instituted against the General Partner, the Partnership or any of its Subsidiaries or any of their respective officers or directors in their capacities as such, before or by any federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceeding an unfavorable ruling, decision or finding would materially and adversely affect the business, properties, business prospects, condition (financial or otherwise) or results of operations of the Partnership and its Subsidiaries taken as a whole. (e) Each of the representations and warranties of the Partnership contained herein shall be true and correct in all material respects at the Closing Date and, with respect to the Option Units, at the Option Closing Date, as if made at the Closing Date and, with respect to the Option Units, at the Option Closing Date, and all covenants and agreements herein contained to be performed on the part of the Partnership and all conditions herein contained to be fulfilled or complied with by the Partnership at or prior to the Closing Date and, with respect to the Option Units, at or prior to the Option Closing Date, shall have been duly performed, fulfilled or complied with. (f) The Representatives shall have received an opinion, dated the Closing Date and, with respect to the Option Units, the Option Closing Date, satisfactory in form and substance to counsel for the Underwriters, from Xxxxxxxx Xxxxx Xxxxxxxx Xxxx & Ballon LLP, counsel to the Partnership, to the effect set forth in Exhibit D (to the extent such opinions are not covered by the opinion received pursuant to ~~Rule 424~~ Section 5(g) hereof). (g) The Representatives shall have received an opinion, dated the Closing Date and, with respect to the Option Units, the Option Closing Date, satisfactory in form and substance to counsel for the Underwriters, from Xxxxxxx & Xxxxx LLP, counsel to the Partnership, to the effect set forth in Exhibit D (to the extent such opinions are not ~~later than 5:00 p.m. New York City time~~covered by the opinion received pursuant to Section 5(f) hereof). (h) The Representatives shall have received an opinion, dated the Closing Date and the Option Closing Date, from Xxxxx & Xxxxx, L.L.P., counsel to the Underwriters, with respect to the Registration Statements, the Prospectus and this Agreement, which opinion shall be satisfactory in all respects to the Representatives. (i) On the date of the Prospectus, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, addressed to the Representatives and in form and substance satisfactory to the Representatives, confirming that they are independent accountants with respect to the Partnership as required by the Act and the Rules and Regulations and with respect to the financial and other statistical and numerical information contained in the Registration Statements or incorporated by reference therein. At the Closing Date and, as to the Option Units, the Option Closing Date, the Accountants shall have furnished to the Representatives a letter, dated the date of its delivery, which shall confirm, on the ~~second business day following~~ basis of a review in accordance with the procedures set forth in the letter from the Accountants, that nothing has come to their attention during the period from the date of ~~this Agreement~~the letter referred to in the prior sentence to a Date (specified in the letter) not more than five days prior to the Closing Date and the Option Closing Date which would require any change in their letter dated the date of the Prospectus, if it were required to be dated and delivered at the Closing Date and the Option Closing Date. b(j) ~~Subsequent to the execution of this Agreement and~~ On or prior to the Closing Date, ~~there shall not have occurred any material adverse change in~~ the ~~financial, economic or political condition of the Province from that set forth in the Registration Statement, the Time of Sale Information and the Final Prospectus; and the Underwriters~~ Representatives shall have ~~received, on~~ received the ~~Closing Date, a certificate dated~~ executed agreements referred to in Section 4(n). (k) At the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth in the first clause of this Section 9(b). c) The Underwriters shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Province, dated the Closing Date, to the effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated the Closing Dateand, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the ProvinceOption Units, the ~~Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory~~ Option Closing Date, there shall be furnished to the Representatives ~~as to factual matters. The opinion shall state in effect that on~~ an accurate certificate, dated the ~~basis~~ date of ~~an independent examination of such records~~its delivery, ~~certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion~~ signed by each of the ~~Attorney General,~~ Chief Executive Officer and the ~~Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General~~ Chief Financial Officer of the ~~Province~~General Partner, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to ~~them and they believe that~~ the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinionRepresentatives, to the effect that: (i) ~~The Securities are exempted securities~~ Each signer of such certificate has carefully examined the Registration Statements and the Prospectus (including any documents filed under the ~~Trust Indenture~~ Exchange Act ~~of 1939, as amended (~~and deemed to be incorporated by reference into the ~~“Trust Indenture Act”),~~ Prospectus) and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) ~~the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment),~~ as of the date of ~~this Agreement~~such certificate, ~~contained an untrue statement of a~~ such documents are true and correct in all material ~~fact or omitted~~ respects and do not omit to state a material fact required to be stated therein or necessary in order to make the statements therein not ~~misleading;~~ untrue or misleading and (B) since the ~~Time~~ Second Effective Date, no event has occurred as a result of ~~Sale Information (other than~~ which it is necessary to amend or supplement the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, contained an untrue statement of a material fact or omitted to state a material fact necessary Prospectus in order to make the statements ~~therein,~~ therein not untrue or misleading in any material respect and there has been no document required to be filed under the ~~light of~~ Exchange Act and the ~~circumstances under which they were made, not misleading; or (C)~~ Exchange Act Rules and Regulations that upon such filing would be deemed to be incorporated by reference into the ~~Final~~ Prospectus ~~(other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel~~ that has not been ~~requested to comment), as~~ so filed; (ii) Each of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of the ~~Province~~ Partnership contained in this Agreement ~~are~~ were, when originally made, and are, at the time such certificate is delivered, true and ~~correct, that~~ correct in all material respects; (iii) Each of the ~~Province has complied with all agreements and satisfied all conditions on its part~~ covenants required herein to be performed ~~or satisfied at~~ by the Partnership on or prior to the delivery of such certificate has been duly, timely and fully performed and each condition herein required to be complied with by the Partnership on or prior to the date of such certificate has been duly, timely and fully complied with; and (iv) Since the respective dates as of which information is given in the Registration Statements and the Prospectus, (A) there has not been, and no development has occurred which could reasonably be expected to result in, a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of the Partnership and its Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statements and the Prospectus and (B) neither the Partnership nor any of its Subsidiaries has sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the Registration Statements and the Prospectus; and such other matters as the Representatives may reasonably request. (l) The Units shall be qualified for sale in such states as the Representatives may reasonably request, each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date and the Option Closing Date. (m) Prior to the Closing Date, ~~that no stop order suspending~~ the ~~effectiveness of the Registration Statement has been issued and no proceedings for that purpose~~ Units shall have been ~~instituted or are contemplated by the SEC~~duly authorized for listing on NYSE upon official notice of issuance. i(n) The ~~purchase~~ NASD shall have approved the underwriting terms and ~~sale of the Securities in accordance with the provisions hereof~~ arrangements and such approval shall not ~~be prohibited by any statute, order, rule~~ have been withdrawn or ~~regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York~~limited. j(o) The ~~Province~~ Partnership shall have furnished to the ~~Underwriters and~~ Representatives such certificates, in addition to ~~counsel for the Underwriters such further certificates and documents~~ those specifically mentioned herein, as the Representatives ~~and such counsel~~ may have reasonably ~~request. k) Subsequent~~ requested as to the ~~execution of this Agreement~~ accuracy and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The Province will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or completeness at ~~any time prior to,~~ the Closing Date and the Option Closing Date of any statement in the Registration Statements or the Prospectus or any documents filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus, as to the accuracy at the Closing Date and the Option Closing Date of the representations and warranties of the Partnership herein, as to the performance by the ~~Representatives on behalf~~ Partnership of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.

Appears in 1 contract

Samples: Underwriting Agreement (Star Gas Partners Lp)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the ~~several~~ Underwriters to purchase and pay for the ~~Securities~~ Notes will be subject to the ~~accuracy~~ accuracy, as of the date hereof and as of the Closing Date, of the representations and warranties on of Collegiate Funding and the ~~part of the Province~~ Sponsor herein, to the accuracy of the written statements of officers of Collegiate Funding, the ~~representatives of~~ Sponsor, the ~~Province~~ Seller, the Master Servicer, the Administrator, the Sub-Servicer, the Originating Agent, the Delaware Trustee, the Indenture Trustee and the Eligible Lender Trustee made pursuant to the provisions ~~hereof~~of this Section, to the performance by Collegiate Funding and the ~~Province~~ Sponsor of ~~its~~ their obligations hereunder ~~and with regard to the Securities~~ and to the following additional conditions precedent: (a) ~~Prior~~ The Underwriters shall have received a letter, of Ernst & Young, LLP, dated on or prior to the date hereof, confirming that such accountants are independent public accountants within the meaning of the Act, and substantially in the form of the drafts to which the Underwriters have previously agreed and otherwise in form and substance satisfactory to the Underwriters and counsel for the Underwriters (i) regarding certain numerical information contained in the Prospectus and (ii) relating to certain agreed-upon procedures. (b) The Prospectus shall have been filed with the Commission in accordance with the Act and Section 5(a) hereof. On or prior to the Closing Date, no stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Province or the Representatives~~Sponsor, shall be contemplated by the SEC; and each Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act, shall have been filed with the SEC under the Securities Act; and the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this AgreementCommission. b(c) Subsequent to the execution and delivery of this ~~Agreement and prior to the Closing Date~~Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the Financed Student Loans or particularly the business or properties of the Trust, Collegiate Funding, the Sponsor, the Seller, the Master Servicer, the Sub-Servicer, the Originating Agent, the Administrator or the LIBOR Swap Counterparty, which, in the sole discretion of the Underwriters, materially impairs the investment quality of the Notes; (ii)any downgrading in the rating of any securities of Collegiate Funding, the Sponsor, the Seller, the Master Servicer, the Sub-Servicer or the Originating Agent, 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 such debt securities (other than an 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, American Stock Exchange, or NASDAQ National Market, or any setting of minimum or maximum prices for trading on such exchange; (iv)any banking moratorium declared by Federal or New York authorities; (v)any outbreak or escalation of hostilities in which the United States is involved, any declaration of war or national emergency by Congress, any material ~~adverse change~~ disruption in the ~~financial~~financial markets or any other substantial national or international calamity or emergency if, ~~economic or political condition~~ in the sole judgment of the ~~Province from that set forth in~~ Underwriters, the effect of any such outbreak, escalation, declaration, material disruption, calamity or emergency makes it impractical or inadvisable to proceed with the public offering or the delivery of the Notes as contemplated by the Registration Statement, as amended as of the ~~Time of Sale Information and~~ date hereof, or (vi) a material disruption has occurred in securities settlement or clearance services in the ~~Final Prospectus; and the Underwriters shall have received, on~~ United States. (d) On the Closing Date, ~~a certificate dated the Closing Date and signed by the Minister of Finance~~ each of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth in the first clause of this Section 9(b). c) The Underwriters shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Province, dated the Closing Date, to the effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (ii) This Agreement Basic Documents and the ~~Fiscal Agency Agreement~~ Notes shall have been duly authorized, executed and delivered by the ~~Province and each is a valid and legally binding agreement of the Province~~parties thereto, ~~except as rights to indemnity and contribution hereunder may~~ shall be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and ~~effect~~effect and no default shall exist thereunder, and the Indenture Trustee and the Underwriters shall each have received a fully executed copy thereof or, with respect to the Notes, a conformed copy thereof. The Basic Documents and the Notes shall be substantially in the forms heretofore provided to the Underwriters. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. de) The Underwriters shall have received an opinion of ~~Oxxxx~~Xxxxxx Xxxxxx, ~~Hxxxxx & Harcourt LLP~~dated the Closing Date and satisfactory in form and substance to the Underwriters, ~~Canadian~~ to the effect that: (i) Each of Collegiate Funding, the Master Servicer and the Administrator has been duly formed and is validly existing as a limited liability company in good standing under the laws of its jurisdiction of organization, with full power and authority to own its properties and conduct its business, and is duly qualified to transact business and is in good standing in each jurisdiction in which its failure to qualify would have a material adverse effect upon transactions contemplated by the Basic Documents and its business or the ownership of its property. (ii) Each of the Basic Documents to which Collegiate Funding, the Master Servicer or the Administrator is a party is the legal, valid and binding obligation of Collegiate Funding, the Master Servicer and the Administrator, as applicable, enforceable against Collegiate Funding, the Master Servicer and the Administrator in accordance with its terms. (iii) Neither the execution, delivery and performance by Collegiate Funding, the Master Servicer or the Administrator, respectively, of the Basic Documents to which it is a party, nor the consummation by Collegiate Funding, the Master Servicer or the Administrator, as applicable, of the transactions contemplated thereby, will conflict with or result in a breach 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 of the property or assets of Collegiate Funding, the Master Servicer or the Administrator, as applicable, pursuant to the terms of the formation documents of Collegiate Funding, the Master Servicer or the Administrator, as applicable, or any statute, rule, regulation or order of any governmental agency or body, or any court having jurisdiction over Collegiate Funding, the Master Servicer or the Administrator, as applicable, or its properties, or any agreement or instrument known to such counsel after due investigation to which Collegiate Funding, the Master Servicer or the Administrator, as applicable, is a party or by which Collegiate Funding, the Master Servicer or the Administrator, as applicable, or any of its properties is bound. (iv) No authorization, license, approval, consent or order of, or filing with, any court or governmental agency or authority is necessary in connection with the execution, delivery and performance by Collegiate Funding, the Master Servicer or the Administrator, respectively, of the Basic Documents to which it is a party, except for those which have been obtained and except for those that may be required under state securities or Blue Sky laws. (v) There are no legal or governmental proceedings known to such counsel to be pending to which Collegiate Funding, the Master Servicer or the Administrator is a party or of which any property of Collegiate Funding, the Master Servicer or the Administrator is the subject, nor are any such proceedings known to such counsel to be threatened or contemplated by governmental authorities or threatened by others (i) asserting the invalidity of all or any part of the Basic Documents to which Collegiate Funding, the Master Servicer or the Administrator is a party, or (ii) that could materially adversely affect the ability of Collegiate Funding, the Master Servicer or the Administrator to perform its obligations under Basic Documents to which it is a party. Such opinion may contain such assumptions, qualifications and limitations as are customary in opinions of this type and are reasonably acceptable to counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated the Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, ~~Oxxxx, Hxxxxx & Harcourt LLP~~ such counsel may ~~rely upon a certificate (which may be unaudited)~~ state that they express no opinion as to the laws of any jurisdiction other than the federal law of the ~~Minister~~ United States of ~~Finance~~ America (excluding federal securities and tax laws) and the laws of the ~~Province, the Deputy Minister~~ State of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereonVirginia. e(f) The Underwriters shall have received ~~the~~ an opinion of ~~Sxxxxxxx~~ Stroock & ~~Sterling~~ Stroock & Xxxxx LLP, ~~United States~~ special counsel ~~for~~ to the ~~Province~~Sponsor and the Seller, dated the Closing ~~Date, subject~~ Date and satisfactory in form and substance to ~~such qualifications and based upon such assumptions as are customary in~~ the ~~United States in respect of such opinion~~Underwriters, to the effect that: (i) The ~~Securities are exempted securities~~ Sponsor has been duly formed and is validly existing as a limited liability company in good standing under the ~~Trust Indenture Act~~ laws of ~~1939~~its jurisdiction of organization, ~~as amended (~~with full power and authority to own its properties, conduct its business and consummate the ~~“Trust Indenture Act”), and no qualification of an indenture in respect of~~ transactions contemplated by the ~~Securities under the Trust Indenture Act~~ Basic Documents to which it is ~~required for the issuance, sale and delivery of the Securities~~a party. (ii) ~~The statements~~ Each of the Basic Documents to which the Sponsor is a party is the legal, valid and binding obligation of the Sponsor enforceable against the Sponsor in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to thereinaccordance with its terms. (iii) ~~The statements~~ Each of the Basic Documents to which the Seller is a party is the legal, valid and binding obligation of the Seller enforceable against the Seller in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to thereinaccordance with its terms. (iv) ~~Based upon such counsel’s participation~~ When the Notes have been duly executed, authenticated and delivered in ~~conferences~~ accordance with ~~representatives of~~ the ~~Province, counsel~~ Indenture and paid for ~~the Province and their examination of specified documents, no facts have come~~ pursuant to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, ~~contained an untrue statement of a material fact or omitted~~ the Notes will be validly issued and outstanding, entitled to ~~state a material fact required to be stated therein or necessary to make~~ the statements therein not misleading; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as benefits of the ~~Time of Sale, contained an untrue statement of a material fact or omitted to state a material fact necessary~~ Indenture and enforceable in ~~order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or~~ accordance with their terms. (Cv) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the The Registration Statement ~~and~~ is effective under the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may beand, to the best of ~~his or her knowledge after reasonable investigation~~such counsel's knowledge, shall state that the representations and warranties of the Province in this Agreement are true and correct, that the Province has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date, that no stop order suspending the effectiveness of the Registration Statement or any part thereof or any amendment thereto has been issued under the Act and no ~~proceedings~~ proceeding for that purpose ~~have~~ has been instituted or ~~are contemplated~~ threatened by the ~~SEC~~Commission. i(vi) The ~~purchase~~ Sponsor is not, and will not as a result of the offer and sale of the ~~Securities~~ Notes as contemplated in ~~accordance with~~ the ~~provisions hereof shall not~~ Prospectus and this Agreement become, required to be ~~prohibited by any statute~~registered as an "investment company" as defined in the Investment Company Act of 1940, ~~order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada,~~ as amended (the ~~United States of America, the Province or the State of New York~~"Investment Company Act"). j(vii) The ~~Province shall have furnished~~ Trust is not, and will not as a result of the offer and sale of the Notes as contemplated in the Prospectus and this Agreement become, required to be registered under the Investment Company Act. (viii) The Indenture has been duly qualified under the Trust Indenture Act. (ix) The statements in the Prospectus Supplement under the headings "Summary of Terms - Federal income tax consequences," "Certain Federal Income Tax Considerations," "Summary of Terms- ERISA considerations," and "ERISA Considerations," and in the Base Prospectus under the headings "Federal Income Tax Consequences," "ERISA Considerations" and "Description of the Federal Family Education Loan Program," to the ~~Underwriters and to counsel for the Underwriters such further certificates and documents as the Representatives and~~ extent that they constitute statements of matters of law or legal conclusions with respect thereto, have been reviewed by such counsel ~~reasonably request~~and accurately describe the matters discussed therein. k) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The Province will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.

Appears in 1 contract

Samples: Underwriting Agreement (Collegiate Funding Services Inc)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the several Underwriters to purchase and pay for the ~~Securities will~~ Firm Shares on the First Closing Date and the Option Shares on the Second Closing Date shall be subject to the accuracy of the representations and warranties on the part of the ~~Province herein~~Company and each of the Selling Shareholders herein set forth as of the date hereof and as of the First Closing Date or the Second Closing Date, as the case may be, to the accuracy of the statements of ~~the representatives~~ officers of the ~~Province~~ Company made pursuant to the provisions hereof, to the performance by the ~~Province~~ Company and each of ~~its~~ the Selling Shareholders of their respective obligations ~~hereunder and with regard to the Securities~~ hereunder, and to the following additional ~~conditions precedent~~conditions: (a) Prior to the First Closing Date or the Second Closing Date, as the case may be, no stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement shall have been issued and no proceedings for that purpose shall have been instituted or shall be pending or, to the knowledge of the ~~Province~~ Company, the Selling Shareholders or the ~~Representatives~~Representative, shall be ~~contemplated~~ threatened by the ~~SEC;~~ Commission. If the Company has elected to rely upon Rule 430B, the information concerning the public offering price of the Shares and ~~each Issuer Free Writing Prospectus~~price-related information, to and such other information omitted from the ~~extent required by~~ preliminary prospectus in reliance on Rule ~~433 under the Securities Act~~430B, shall have been ~~filed with~~ transmitted to the ~~SEC under~~ Commission for filing pursuant to Rule 424(b) in the ~~Securities Act;~~ manner and within the ~~Final Prospectus~~ prescribed time period (without reliance on Rule 424(b)(8)) (or a post-effective amendment providing such information shall have been filed ~~with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this Agreement. b) Subsequent to the execution of this Agreement~~ and prior to the Closing Date, there shall not have occurred any material adverse change in the financial, economic or political condition of the Province from that set forth in the Registration Statement, the Time of Sale Information and the Final Prospectus; and the Underwriters shall have received, on the Closing Date, a certificate dated the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth in the first clause of this Section 9(b). c) The Underwriters shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Province, dated the Closing Date, to the effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters declared effective in accordance with the ~~provisions~~ requirements of ~~this Agreement~~ Rules 430B and 424(b)). If a Rule 462(b) Registration Statement is required, such Registration Statement shall have been transmitted to the ~~Fiscal Agency Agreement~~Commission for filing and become effective within the prescribed time period, ~~will constitute valid, legally binding, direct and unconditional general obligations of~~ prior to the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the SecuritiesFirst Closing Date. (ivb) ~~All authorizations~~The Shares shall have been qualified for sale under the blue sky laws of such jurisdictions as shall have been specified by the Representative. (c) The legality and sufficiency of the authorization, ~~approvals~~issuance and sale or transfer and sale of the Shares hereunder, ~~consents~~the validity and form of the Shares, ~~orders and waivers required under British Columbian and Canadian law to permit~~ the execution and delivery of this Agreement and the ~~Fiscal Agency~~ Pricing Agreement, and all corporate proceedings and other legal matters incident thereto, and the ~~issuance~~ form of the ~~Securities~~ Registration Statement, the Disclosure Package, any Issuer Limited Use Free Writing Prospectus and the ~~performance by the Province of its obligations hereunder and thereunder~~ Prospectus (except financial statements) shall have been ~~obtained and are in full force and effect~~approved by counsel for the Underwriters exercising reasonable judgment. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The ~~Underwriters~~ Representative shall not have ~~received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to~~ advised the ~~Underwriters, given in respect of~~ Company that the laws of British Columbia and Canada, dated the Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the ProvinceRegistration Statement, the ~~Deputy Minister of Finance of~~ Disclosure Package, any Issuer Limited Use Free Writing Prospectus, when considered together with the ~~Province~~ Disclosure Package, or ~~another officer of~~ the ~~Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records~~Prospectus or any amendment or supplement thereto, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion, to the effect that: (i) The Securities are exempted securities under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained contains an untrue statement of a fact, which, in the opinion of counsel for the Underwriters, 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 necessary to make the statements therein not misleading; . (Be) Subsequent to the ~~Time~~ execution and delivery of ~~Sale Information (other than~~ this Agreement, there shall not have occurred any change, or any development involving a prospective change, in or materially and adversely affecting particularly the ~~financial statements and other financial data contained therein~~ business or ~~omitted therefrom, as to which such counsel has not been requested to comment), as~~ properties of the ~~Time~~ Company or its subsidiaries, taken as a whole, whether or not arising in the ordinary course of ~~Sale~~business, ~~contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein~~which, in the ~~light~~ reasonable judgment of the ~~circumstances under which they were made~~Representative, ~~not misleading;~~ makes it impractical or inadvisable to proceed with the Offering as contemplated hereby. (Cf) There shall have been furnished to the ~~Final Prospectus (other than~~ Representative, on the ~~financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date~~ First Closing Date or the Second Closing Date, ~~contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make~~ as the ~~statements therein~~case may be, ~~in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus~~ except as otherwise expressly provided below: (~~other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment~~i) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an An opinion of ~~Linklaters LLP~~Bass, ~~United Kingdom~~ Xxxxx & Xxxx PLC, counsel for the ~~Province~~Company, addressed to the Underwriters and dated the First Closing Date or the Second Closing Date, ~~subject to such qualifications~~ as the case may be, in form and ~~based upon such assumptions as are customary in the United Kingdom in respect of such opinion,~~ substance reasonably satisfactory to the ~~effect that~~ Underwriters. (ii) An opinion of Bass, Xxxxx & Xxxx PLC, counsel for the ~~statements in the Time of Sale Information~~Selling Shareholders, ~~and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”,~~ addressed to the ~~extent that they constitute summaries of legal matters referred~~ Underwriters and dated the First Closing Date in form and substance reasonably satisfactory to ~~therein, fairly summarize in all material respects~~ the ~~legal matters referred to therein~~Underwriters. g(iii) ~~The Underwriters shall have received an~~ Such opinion or opinions of ~~Dxxxx Xxxx & Wxxxxxxx~~ Sidley Austin LLP, ~~United States~~ counsel for the Underwriters, dated the First Closing Date or the Second Closing Date, as the case may be, with respect to the existence of the Company, the validity of the Shares, the Registration Statement, the Disclosure Package and the Prospectus and other related matters ~~specified in subdivisions (i)~~as the Representative may reasonably require, and the Company shall have furnished to such counsel such documents and shall have exhibited to them such papers and records as they reasonably request for the purpose of enabling them to pass upon such matters. (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a A certificate of the ~~Minister of Finance of~~ chief executive officer and the ~~Province, the Deputy Minister of Finance of the Province or another~~ principal financial officer of the ~~Ministry of Finance of the Province satisfactory to the Representatives~~Company, dated the First Closing Date or the Second Closing Date~~, in which such Minister, Deputy Minister or other officer~~, as the case may be, to the ~~best of his or her knowledge after reasonable investigation, shall state that~~ effect that: (1) the representations and warranties of the ~~Province~~ Company set forth in Section 2 of this Agreement are true and ~~correct~~correct as of the date of this Agreement and as of the First Closing Date or the Second Closing Date, ~~that~~ as the ~~Province~~ case may be, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to ~~the~~ such Closing Date~~, that~~ ; (2) the Commission has not issued an order preventing or suspending the use of the Prospectus or any preliminary prospectus filed as a part of the Registration Statement or any amendment thereto; no stop order suspending the effectiveness of the Registration Statement has been ~~issued~~ issued; and to the knowledge of the respective signers, no proceedings for that purpose have been instituted or are ~~contemplated~~ pending or threatened by the ~~SEC~~Commission; and (3) subsequent to the date of the most recent financial statements included in the Registration Statement and Prospectus, and except as set forth or contemplated in the Prospectus, (A) none of the Company and its consolidated subsidiaries has incurred any material liabilities or obligations, direct or contingent, or entered into any material transactions not in the ordinary course of business, and (B) there has not been any change that has had or would reasonably be expected to have a Material Adverse Effect or any material change in their short-term debt or long-term debt. The delivery of the certificate provided for in this subparagraph shall be and constitute a representation and warranty of the Company and not of the individual signing officers as to the facts required in the immediately foregoing clauses (1), (2) and (3) to be set forth in said certificate. i(v) ~~The purchase and sale~~ A certificate of each of the ~~Securities~~ Selling Shareholders dated the First Closing Date to the effect that the representations and warranties of such Selling Shareholder set forth in ~~accordance~~ Section 3 are true and correct as of such date and such Selling Shareholder has complied with all the agreements and satisfied all the conditions on the part of such Selling Shareholder to be performed or satisfied at or prior to such Closing Date. (vi) At the time the Pricing Agreement is executed and also on the First Closing Date or the Second Closing Date, as the case may be, there shall be delivered to the Representative a letter addressed to it, as Representative of the Underwriters, from Ernst & Young LLP, an independent registered public accounting firm, the first one to be dated the date of the Pricing Agreement, the second one to be dated the First Closing Date and the third one (in the event of a second closing) to be dated the Second Closing Date, in form and substance reasonably satisfactory to the Underwriters. There shall not have been any material change or decrease specified in the letters referred to in this subparagraph which makes it impractical or inadvisable in the reasonable judgment of the Representative to proceed with the ~~provisions hereof shall not be prohibited by any statute~~Offering or purchase of the Shares as contemplated hereby. (vii) A certificate of the chief executive officer and the principal financial officer of the Company, ~~order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada,~~ dated the ~~United States of America, the Province~~ First Closing Date or the ~~State~~ Second Closing Date, as the case may be, regarding certain statistical or financial figures included in the Prospectus which you may reasonably request and which have not been otherwise verified by the letters referred to in clause (vi) above, such verification to include the provision of ~~New York~~documentary evidence supporting any such statistical or financial figure. j(viii) ~~The Province shall have furnished to the Underwriters and to counsel for the Underwriters such~~ Such further certificates and documents as ~~the Representatives and such counsel~~ you may reasonably request. k) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents ~~will~~ shall be in compliance with the provisions hereof only if they are ~~reasonably~~ satisfactory to the ~~Representatives~~Representative and to Sidley Austin LLP, counsel for the Underwriters, which approval shall not be unreasonably withheld. The ~~Province will~~ Company shall furnish the ~~Underwriters~~ Representative with such manually signed or conformed copies of such opinions, certificates, letters and documents as the ~~Representatives reasonably request~~Representative requests. If any of condition to the ~~above conditions shall~~ Underwriters’ obligations hereunder to be satisfied prior to or at the First Closing Date is not ~~have been fulfilled as reasonably contemplated herein~~so satisfied, this Agreement ~~and all obligations~~ at the election of the ~~Underwriters hereunder may be terminated with respect~~ Representative will terminate upon written notification to ~~Securities at, or at any time prior to,~~ the ~~Closing Date by~~ Company and the ~~Representatives on behalf of the Underwriters,~~ Selling Shareholders without ~~any~~ liability on the part of any Underwriter or the Company or the Selling Shareholders, except for the expenses to be paid or reimbursed by the Company pursuant to Sections 8 and 10 hereof and except to the ~~Province or of the Province to any Underwriter, except as~~ extent provided in Section ~~6, Section 10 and Section 13~~ 12 hereof~~. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement~~.

Appears in 1 contract

Samples: Underwriting Agreement (Healthstream Inc)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the ~~several~~ Underwriters ~~to purchase and pay for the Securities will be~~ hereunder are subject to the accuracy of the representations and warranties on the part of the Province herein, to the accuracy of the statements of the representatives of the Province made pursuant to the provisions hereof, to the performance by the Province of its obligations hereunder and with regard to the Securities and to the following ~~additional conditions precedent~~conditions: (a) ~~Prior to the Closing Date,~~ The Prospectus shall have been filed as required by Section 3(a) and (i) no stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement shall have been issued and no proceedings for that purpose shall ~~have been instituted or~~be pending or threatened by the Commission, to (ii) no order suspending the ~~knowledge~~ effectiveness of the ~~Province~~ Registration Statement or the ~~Representatives,~~ qualification or registration of the Securities under the securities or blue sky laws of any jurisdiction shall be in effect and no proceeding for such purpose shall be pending before or threatened or contemplated by the ~~SEC; and each Issuer Free Writing Prospectus~~Commission or the authorities of any such jurisdiction, to (iii) any request for additional information on the ~~extent required by Rule 433 under~~ part of the ~~Securities Act,~~ staff of the Commission or any such authorities shall have been ~~filed~~ complied with to the ~~SEC under~~ satisfaction of the ~~Securities Act;~~ staff of the Commission or such authorities and (iv) after the ~~Final~~ date hereof no amendment or supplement to the Registration Statement or the Prospectus shall have been filed unless a copy thereof was first submitted to the Underwriters and the Underwriters do not object thereto in good faith. (b) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there shall not have been a material adverse change in the general affairs, business, business prospects, properties, management, condition (financial or otherwise) or results of operations of Operating Partnership and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, in each case other than as set forth in or contemplated by the Registration Statement and the Prospectus and (ii) neither the Company nor any of its subsidiaries shall have sustained any material loss or interference with its business or properties from fire, explosion, flood or other casualty, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the ~~SEC pursuant~~ Registration Statement and the Prospectus, if in the judgment of the Underwriters any such development makes it impracticable or inadvisable to ~~Rule 424 not later than 5:00 p.m. New York City time~~consummate the sale and delivery of the Securities by the Underwriters and at the public offering price. (c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its subsidiaries or any of their respective officers or directors or trustees, as the case may be, in their capacities as such, before or by any Federal, state or local court, commission, regulatory body, administrative agency or other governmental body, domestic or foreign, in which litigation or proceeding it is reasonably probable that an unfavorable ruling, decision or finding would have a Material Adverse Effect. (d) Each of the representations and warranties of the REIT and the Operating Partnership contained herein shall be true and correct in all material respects at the Closing Date, as if made at the Closing Date, and all covenants and agreements contained herein to be performed on the ~~second business day following~~ part of the ~~date of this Agreement~~Company and all conditions contained herein to be fulfilled or complied with by the Company at or prior to the Closing Date, shall have been duly performed, fulfilled or complied with. b(e) Subsequent to the execution and delivery of this Underwriting Agreement and prior to the Closing Date, there shall not have occurred any ~~material adverse change~~ downgrading in the ~~financial, economic~~ rating accorded the Securities or ~~political condition~~ any other debt securities of the ~~Province from~~ Company by any Rating Agency nor shall any notice have been given to the Company of (i) any intended or potential downgrading by any Rating Agency in such securities, or (ii) any review or possible change by any Rating Agency that ~~set forth in the Registration Statement~~does not indicate a stable, ~~the Time of Sale Information and the Final Prospectus; and the~~ positive or improving rating accorded such securities. (f) The Underwriters shall ~~have received~~receive one or more opinions, ~~on the Closing Date, a certificate~~ dated the Closing Date and ~~signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance~~ satisfactory in form and substance to the ~~Representatives~~ Underwriters' counsel, from Xxxxxxx Procter LLP, counsel to the Company, (i) to the effect set forth in Exhibit B and (ii) concerning the tax matters set forth below: (i) Commencing with the Company's first ~~clause~~ taxable year ended December 31, 1994, the Company has been organized in conformity with the requirements for qualification and taxation as a real estate investment trust under the Code, and the Company's proposed method of ~~this Section 9(b)~~organization and operation, as described in the Prospectus and in company certificates delivered to such counsel, will enable it to continue to meet the requirements for qualification and taxation as a real estate investment trust under the Code; and (ii) The statements in the (A) Prospectus Supplement under the caption "Additional United States Federal Income Tax Consequences" and (B) Prospectus under the caption "United States Federal Income Tax Consequences," (to the extent not superseded or inconsistent with the statements in the Prospectus Supplement) to the extent such information constitutes matters of law, summaries of legal matters, or legal conclusions, have been reviewed by such counsel and are accurate in all material respects as of the date of such opinion. c(g) The Underwriters shall ~~have received~~ receive an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Provinceopinion, dated the Closing Date, from Hunton & Xxxxxxxx LLP, Underwriters' counsel, with respect to the ~~effect that under~~ Registration Statement, the ~~laws of British Columbia~~ Prospectus and ~~Canada and subject~~ this Agreement, which opinion shall be satisfactory in all respects to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the ~~Securities~~Underwriters. (iih) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance Concurrently with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this ~~Agreement and the Fiscal Agency~~ Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available Deloitte & Touche LLP shall furnish to the ~~Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not~~ Underwriters a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canadaletter, dated the ~~Closing Date~~date of its delivery, as addressed to the ~~matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications~~ Underwriters and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to ~~them~~ the Underwriters, confirming that they are independent accountants with respect to the Company as required by the Act and ~~they believe that~~ the ~~Representatives are justified~~ Rules and Regulations and with respect to the financial and other statistical and numerical information contained in ~~relying thereon. e) The Underwriters shall have received~~ the ~~opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated~~ Registration Statement or incorporated by reference therein. At the Closing Date, ~~subject~~ Deloitte & Touche LLP shall furnish to ~~such qualifications and based upon such assumptions as are customary~~ the Underwriters a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the ~~United States~~ letter from Deloitte & Touche LLP, that nothing has come to their attention during the period from the date of the letter referred to in ~~respect~~ the prior sentence to a date (specified in the letter) not more than three days prior to the Closing Date which would require any change in their letter dated the date hereof if it were required to be dated and delivered at the Closing Date. (i) At the Closing Date, there shall be furnished to the Underwriters an accurate certificate, dated the date of ~~such opinion~~its delivery, signed by each of the Chief Executive Officer and the Chief Financial Officer of each of (a) Gables GP on behalf of the Operating Partnership and (b) the REIT, in form and substance satisfactory to the Underwriters, to the effect that: (i) The ~~Securities are exempted securities~~ Prospectus has been filed as required by Section 3(a) and no stop order suspending the effectiveness of the Registration Statement under the ~~Trust Indenture~~ Act or the blue sky laws of ~~1939~~any jurisdiction has been issued and, ~~as amended (~~to the ~~“Trust Indenture Act”)~~best of their knowledge, information and belief, no ~~qualification~~ proceeding for such purpose is pending before or threatened or contemplated by the Commission or the authorities of ~~an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities~~any such jurisdiction. (ii) ~~The statements in~~ Any request for additional information with respect to the ~~Time~~ Registration Statement on the part of ~~Sale Information and Final Prospectus under “Description~~ the staff of ~~Bonds” and “Description~~ the Commission or any such authorities has been complied with to the satisfaction of ~~Debt Securities and Warrants”, insofar as~~ the staff of the Commission or such ~~statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein~~authorities. (iii) ~~The statements in~~ Each signer of such certificate has carefully examined the ~~Time of Sale Information,~~ Registration Statement and ~~Final~~ the Prospectus (including any documents filed under ~~“Description of Debt Securities~~ the Exchange Act and ~~Warrants — United States Federal Income Taxation”, as supplemented~~ deemed to be incorporated by ~~“Tax Matters — United States Taxation”, to~~ reference into the ~~extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv~~Prospectus) ~~Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province~~ and ~~their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that~~ (A) ~~the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment),~~ believes that as of the date of ~~this Agreement~~such certificate, ~~contained an untrue statement of a~~ such documents are true and correct in all material ~~fact or omitted~~ respects and do not omit to state a material fact required to be stated therein or necessary in order to make the statements therein not ~~misleading;~~ untrue or misleading and (B) does not know of any event that has occurred as a result of which it is necessary to amend or supplement the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, contained an untrue statement of a material fact or omitted to state a material fact necessary Prospectus in order to make the statements ~~therein,~~ therein not untrue or misleading in any material respect and there has been no document required to be filed under the ~~light of~~ Exchange Act and the ~~circumstances under which they were made, not misleading; or (C)~~ Exchange Act Rules and Regulations that upon such filing would be deemed to be incorporated by reference into the ~~Final~~ Prospectus ~~(other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel~~ that has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunderso filed. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) ~~(but only as~~ Each of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of the ~~Province~~ Company contained in this Agreement ~~are~~ were, when originally made, and are, at the time such certificate is delivered, true and ~~correct, that~~ correct in all material respects. (v) Each of the ~~Province has complied with all agreements and satisfied all conditions on its part~~ covenants required to be performed ~~or satisfied at~~ by the Company herein on or prior to the ~~Closing Date~~delivery of such certificate has been duly, ~~that no stop order suspending~~ timely and fully performed and each condition herein required to be complied with by the ~~effectiveness~~ Company on or prior to the date of such certificate has been duly, timely and fully complied with. (vi) Since the execution and delivery of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the SEC. i) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. j) The Province shall have furnished to the Underwriters and to counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. k) Subsequent to the execution of this Underwriting Agreement and prior to the Closing Date, there ~~shall~~ has not ~~have~~ occurred any ~~downgrading,~~ downgrading in the rating accorded the Securities or any other debt securities of the Company by any Rating Agency nor ~~shall~~ has any notice ~~have~~ been given to the Company of (A) any intended or potential downgrading by any Rating Agency in such securities, or of (B) any ~~placing~~ review or possible change by any Rating Agency that does not indicate a stable, positive or improving rating accorded such securities. (j) The Securities shall be qualified for sale in such states as the Underwriters may reasonably request, each such qualification shall be in effect and not subject to any stop order or other proceeding on ~~credit watch with negative implications~~the Closing Date. (k) The Company shall have furnished to the Underwriters such certificates, ~~in the ratings accorded the debt securities~~ including, without limitation, one or more certificates of the ~~Province by any nationally recognized statistical rating agency in~~ REIT and the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The Province will furnish the Underwriters with such conformed copies Secretary of such opinions, certificates, letters and documents as the Representatives reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives Gables GP on behalf of the ~~Underwriters~~Operating Partnership, ~~without any liability on~~ in addition to those otherwise specifically mentioned herein, as the ~~part~~ Underwriters may have reasonably requested as to the accuracy and completeness at the Closing Date of any ~~Underwriter~~ statement in the Registration Statement or the Prospectus or any documents filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus, as to the ~~Province or~~ accuracy at the Closing Date of the ~~Province~~ representations and warranties of the Company herein as to ~~any Underwriter, except~~ the performance by the Company of its obligations hereunder or as ~~provided in Section 6, Section 10~~ to the fulfillment of the conditions concurrent and ~~Section 13 hereof. Notice~~ precedent to the obligations hereunder of ~~such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement~~the Underwriters.

Appears in 1 contract

Samples: Underwriting Agreement (Gables Realty Limited Partnership)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the ~~several~~ Underwriters to purchase and pay for the ~~Securities~~ Notes will be subject to the accuracy of the representations and warranties on the part of the ~~Province~~ Depositor and MBFS USA herein, to the accuracy of the ~~statements~~ certifications of officers of the ~~representatives of the Province~~ Mercedes Parties made pursuant to the provisions hereof, to the performance by the ~~Province~~ Depositor and MBFS USA of ~~its~~ their obligations hereunder ~~and with regard to the Securities~~ and to the following additional conditions precedent: (a) ~~Prior~~ The Registration Statement shall be effective at the Execution Time, and prior to the 2016-B Closing Date, no stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the Securities Act shall have been instituted or, to the knowledge of the ~~Province~~ Depositor or the Representatives, shall be contemplated by the ~~SEC;~~ Commission. (b) Each of the Preliminary Prospectus and ~~each Issuer Free Writing Prospectus, to~~ the ~~extent required by Rule 433 under the Securities Act,~~ Prospectus and any supplements thereto shall have been filed (if required) with the ~~SEC under~~ Commission in accordance with the ~~Securities Act;~~ Rules and Regulations and Section 6(a) hereof. Each of the Pricing Free Writing Prospectus and the ~~Final~~ Ratings Free Writing Prospectus shall have been filed with the ~~SEC pursuant~~ Commission in accordance with Rule 433 of the Rules and Regulations. (c) On or prior to ~~Rule 424 not later than 5:00 p.m. New York City time, on the second business day following~~ the date of this ~~Agreement~~Agreement and on or prior to the 2016-B Closing Date, the Representatives shall have received a letter or letters, dated as of the date of this Agreement and as of the 2016-B Closing Date, respectively, of an independent registered public accounting firm reasonably acceptable to the Representatives, substantially in the form of the drafts to which the Representatives have previously agreed and otherwise in form and substance satisfactory to the Representatives and their counsel. b(d) Subsequent to the execution and delivery of this ~~Agreement and prior to the Closing Date~~Agreement, there shall not have occurred (i) any ~~material adverse change~~ change, or any development involving a prospective change, in or affecting particularly the business or properties of any Mercedes Party which, in the ~~financial, economic or political condition~~ judgment of the ~~Province from that set forth~~ Representatives, materially impairs the investment quality of the Notes or makes it impractical or inadvisable to market the Notes; (ii) any suspension or limitation of trading in securities generally on the New York Stock Exchange, or any setting of minimum or maximum prices for trading on such exchange, or a material disruption in commercial banking or securities settlement or clearance services in the ~~Registration Statement~~United States or with respect to Clearstream or Euroclear systems in Europe; (iii) any general commercial banking moratorium declared by Federal, Delaware or New York authorities; or (iv) 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 the Representatives, the effect of any such outbreak, escalation, declaration, calamity or emergency on the U.S. financial markets makes it impractical or inadvisable to proceed with the offering, sale of and payment for the Notes. (e) The Representatives shall have received opinions of Xxxxxx Xxxxxx LLP, counsel to the Mercedes Parties and such other counsel acceptable to the Underwriters, relating to general corporate and enforceability, tax, perfection and priority, and true sale/nonconsolidation matters addressed to the Representatives, dated the 2016-B Closing Date and satisfactory in form and substance to the Representatives and their counsel. Such counsel shall also opine as to such other matters as the Underwriters may reasonably request. (f) The Representatives shall have received opinions of Xxxxxxxx, Xxxxxx & Xxxxxx, P.A., counsel to the Mercedes Parties, the Owner Trustee and the Titling Trustee and such other counsel acceptable to the Underwriters, relating to general corporate and enforceability matters addressed to the Representatives, dated the 2016-B Closing Date and satisfactory in form and substance to the Representatives and their counsel. (g) The Representatives shall have received an opinion addressed to them by Xxxxxx Xxxxxx LLP in its capacity as special tax counsel to the Issuing Entity, dated the 2016-B Closing Date, substantially to the effect that the statements in each of the Preliminary Prospectus and the Prospectus under the headings “Summary of Terms––Tax Status” (to the extent relating to Federal income tax consequences), and “Material Federal Income Tax Consequences” to the extent that they constitute statements of matters of law or legal conclusions with respect thereto, have been prepared or reviewed by such counsel and accurately describe the material income tax consequences to holders of the Notes, and the statements in each of the Preliminary Prospectus and the Prospectus under the heading “Summary of Terms––ERISA Considerations” and “Certain ERISA Considerations,” to the extent that they constitute statements of matters of law or legal conclusions with respect thereto, have been prepared or reviewed by such counsel and accurately describe the material consequences to holders of the Notes under XXXXX. (h) The Representatives shall have received an opinion addressed to them of in-house counsel to the Asset Representations Reviewer, dated the 2016-B Closing Date and satisfactory in form and substance to the Representatives and their counsel. (i) The Representatives shall have received a negative assurance letter addressed to them of Sidley Austin LLP, counsel to the Mercedes Parties, dated the 2016-B Closing Date, concerning the Time of Sale Information and the ~~Final Prospectus;~~ Prospectus in form and the Underwriters shall have received, on the Closing Date, a certificate dated the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance substance reasonably satisfactory to the Representatives and their counsel. (j) The Representatives shall have received a negative assurance letter addressed to them of Xxxxx Xxxxx LLP, counsel to the ~~effect set forth~~ Underwriters, dated the 2016-B Closing Date, concerning the Time of Sale Information and the Prospectus in form and substance reasonably satisfactory to the ~~first clause of this Section 9(b)~~Representatives and their counsel. c(k) The ~~Underwriters~~ Representatives shall have received an opinion of ~~the Attorney General of the Province~~Xxxxxxx & Xxxxxx, ~~the Deputy Attorney General of the Province~~LLP, ~~Assistant Deputy Attorney General~~counsel to U.S. Bank National Association, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory relating to general corporate and enforceability matters addressed to the Representatives, ~~as Canadian counsel~~ dated the 2016-B Closing Date and satisfactory in form and substance satisfactory to the ~~Province,~~ Representatives and their counsel. (l) The Representatives shall have received certificates dated the 2016-B Closing ~~Date~~Date of the Chairman of the Board, the President, the Executive Vice President, any Vice President, the Treasurer, any Assistant Treasurer, the Secretary, the principal financial officer or the principal accounting officer of each of the Depositor and MBFS USA, in which such officer shall state that, to the ~~effect that under the laws~~ best of ~~British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type:~~ his/her knowledge after reasonable investigation, (i) ~~The Province has full power~~ the representations and ~~authority to execute~~ warranties of the Depositor and ~~deliver~~ MBFS USA, respectively, contained in this Agreement are true and ~~to issue and sell the Securities. (ii) This Agreement~~ correct and the ~~Fiscal Agency Agreement have been duly authorized~~representations and warranties of the Mercedes Parties, ~~executed and delivered by~~ respectively, contained in the ~~Province and each~~ 2016-B Basic Documents to which it is a ~~valid and legally binding agreement of the Province~~party, ~~except~~ as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to thereinapplicable, are ~~accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information~~ true and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize correct in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated the Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representativeseach Mercedes Party, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to them and they believe that the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion, to the effect that: (i) The Securities are exempted securities under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities. (ii) The statements in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of the Province in this Agreement are true and correct, that the Province has complied with all agreements and satisfied all conditions on its part to be performed or satisfied under such agreements at or prior to the 2016-B Closing Date, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose or pursuant to Section 8A of the Securities Act have been instituted or are contemplated by the ~~SEC~~Commission, and (ii) other than as described in such certificate, since the Time of Sale, no material adverse change, or development involving a prospective material adverse change, in or affecting particularly the business or properties of any Mercedes Party, as the case may be, has occurred. (m) The Representatives shall have received evidence satisfactory to it of the filing of all UCC financing statements necessary to perfect (i) ~~The purchase~~ the Collateral Agent’s interest in the Collateral and ~~sale~~ (ii) the transfer of the ~~Securities~~ interest of MBFS USA in ~~accordance with~~ the ~~provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada~~2016-B Exchange Note and the proceeds thereof to the Depositor, the ~~United States~~ transfer of ~~America,~~ the ~~Province or~~ interest of the ~~State~~ Depositor in the 2016-B Exchange Note and the proceeds thereof to the Issuing Entity and the grant of ~~New York~~the security interest by the Issuing Entity in the 2016-B Exchange Note and the proceeds thereof to the Indenture Trustee. j(n) The ~~Province~~ Representatives shall have ~~furnished~~ received, from each of the Depositor and MBFS USA, a certificate executed by a secretary or assistant secretary thereof to which shall be attached certified copies of (i) the ~~Underwriters~~ formation documents, (ii) the limited liability company agreement, bylaws or trust agreement, as applicable, (iii) applicable resolutions authorizing the transactions contemplated hereby and ~~to counsel for~~ by the ~~Underwriters~~ 2016-B Basic Documents and (iv) the designation of incumbency of each such ~~further certificates and documents as the Representatives and such counsel reasonably request~~entity. k(o) ~~Subsequent to the execution~~ Each class of ~~this Agreement and prior to the Closing Date, there~~ Notes shall ~~not have occurred any downgrading, nor shall any notice~~ have been ~~given of any intended or potential downgrading or of any placing on credit watch with negative implications,~~ rated by each Hired NRSRO as set forth in the ~~ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency~~ Ratings Free Writing Prospectus, and in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The Province will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. If any of the above conditions each case shall not have been ~~fulfilled as reasonably contemplated herein, this Agreement and all obligations of~~ placed on any credit watch or review with a negative implication for downgrade. (p) On the ~~Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to~~2016-B Closing Date, the ~~Closing Date~~ Certificates shall have been issued by the ~~Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter~~ Issuing Entity and transferred to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this AgreementDepositor.

Appears in 1 contract

Samples: Underwriting Agreement (Mercedes-Benz Auto Lease Trust 2016-B)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of ~~the several Underwriters to purchase and pay for the Securities will be~~ each Underwriter hereunder are subject to the ~~accuracy~~ following conditions: (a) All filings required by Rule 424 of the ~~representations~~ Rules and ~~warranties~~ Regulations and Rule 430A shall have been made. If the Company has elected to rely upon Rule 462(b) of the Rules and Regulations, the Company has filed the Rule 462(b) Registration Statement by 10:00 p.m., Washington, D.C. time, on the ~~part~~ date of the Province herein, to the accuracy of the statements of the representatives of the Province made pursuant to the provisions hereof, to the performance by the Province of its obligations hereunder and with regard to the Securities and to the following additional conditions precedent:this Agreement. a(i) ~~Prior to the Closing Date, no~~ No stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement shall have been issued and no proceedings for that purpose shall ~~have been instituted or~~be pending or threatened by the SEC, to (ii) no order suspending the ~~knowledge~~ effectiveness of the ~~Province~~ Registration Statement or the ~~Representatives,~~ qualification or registration of the Shares under the securities or blue sky laws of any jurisdiction shall be in effect, and no proceeding for such purpose shall be pending before or threatened or contemplated by the ~~SEC; and each Issuer Free Writing Prospectus~~SEC or the authorities of any such jurisdiction, to (iii) any request for additional information on the ~~extent required by Rule 433 under~~ part of the ~~Securities Act,~~ staff of the SEC or any such authorities shall have been ~~filed~~ complied with to the satisfaction of the staff of the SEC ~~under~~ or such authorities, and (iv) after the ~~Securities Act; and~~ date hereof no amendment or supplement to the ~~Final~~ Registration Statement or the Prospectus shall have been filed unless a copy thereof was first submitted to the Representative and the Representative did not object thereto in good faith, and the Representative shall have received certificates, dated the Closing Date and the Option Closing Date and signed by the Chief Executive Officer of the Company and the Chief Financial Officer of the Company (who may, as to proceedings threatened, rely upon their knowledge, to the effect of the foregoing clauses (i), (ii) and (iii). (c) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there shall not have been a Material Adverse Effect whether or not arising from transactions in the ordinary course of business, and (ii) the Company and its Subsidiaries shall not have sustained any material loss or interference with its business, assets or properties from fire, explosion, flood or other casualty, or from any labor dispute or any court or legislative or other governmental action, order or decree, which is not set forth in the ~~SEC pursuant~~ Registration Statement and the Prospectus. (d) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall have been no litigation or other proceeding instituted against the Company or any of its officers, directors or shareholders in their capacities as such, or any of its assets or properties, before or by any Governmental Body in which litigation or proceeding an unfavorable ruling, decision or finding would result in a Material Adverse Effect. (e) Each of the representations and warranties of the Company contained herein shall be true and correct at the Closing Date and, with respect to ~~Rule 424 not later than 5:00 p.m. New York City time~~the Option Shares, at the Option Closing Date, as if made on such date, and all covenants and agreements herein contained to be performed on the ~~second business day following~~ part of the ~~date of this Agreement~~Company and all conditions herein contained to be fulfilled or complied with by the Company at or prior to the Closing Date and, with respect to the Option Shares, at or prior to the Option Closing Date, shall have been fully performed, fulfilled or complied with in all material respects. b(f) ~~Subsequent~~ The Representative shall have received an opinion, dated the Closing Date and the Option Closing Date, from Hxxxx & Hxxxxxx L.L.P., counsel for the Company in a form and substance reasonably satisfactory to counsel for the Underwriters (g) The Representative shall have received an opinion, dated the Closing Date and the Option Closing Date, from Adsuar Mxxxx Xxxxx & Bxxxxx, P.S.C., counsel to the ~~execution of this Agreement and~~ Underwriters, which opinion shall be satisfactory in all respects to the Representative. (h) At or prior to the Closing Date, ~~there shall not have occurred any material adverse change in~~ the ~~financial, economic or political condition of the Province from that set forth in the Registration Statement, the Time of Sale Information and the Final Prospectus; and the Underwriters~~ Accountants shall have received, on the Closing Date, a certificate dated the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory furnished to the Representatives to the effect set forth in the first clause of this Section 9(b). c) The Underwriters shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, Representative a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Provinceletter, dated the Closing Date, to the effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of ~~issue of~~ its delivery (the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian TaxationOriginal Comfort Letter”), addressed to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia Representative and Canada, dated the Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance satisfactory to ~~them and they believe that~~ the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinionRepresentative, to the effect that: (i) ~~The Securities~~ they are ~~exempted~~ independent accountants within the meaning of the Act and the applicable Rules and Regulations; (ii) in their opinion, the consolidated financial statements of the Company and its Subsidiaries audited by them and incorporated by reference in the Registration Statement comply as to form in all material respects with the applicable accounting requirements of the Act, the Exchange Act and the Rules and Regulations with respect to registration statements on Form S-3; (iii) on the basis of procedures set forth in detail in such letter, nothing has come to their attention (as of a date not more than five (5) business days prior to the date of the delivery of such letter) as a result of the foregoing procedures that caused them to believe that: (1) the unaudited consolidated interim financial statements, if any, incorporated by reference in the Registration Statement, do not comply as to form in all material respects with the applicable accounting requirements of the Exchange Act and the published rules and regulations thereunder; (2) any material modifications should be made to the unaudited consolidated interim financial statements, if any, incorporated by reference in the Registration Statement, for them to be in conformity with generally accepted accounting principles; (3) (i) at the date of the latest available interim financial data and at a specified date not more than five (5) business days prior to the date of delivery of the Original Comfort Letter there was any change in the capital stock, notes payable, advances from the Federal Home Loan Bank, or federal funds purchased and securities sold under agreements to repurchase or any decreases in the consolidated stockholders’ equity (only as to the latest interim financial data) of the Company and its Subsidiaries as compared with amounts shown in the December 31, 2003 statement of financial condition incorporated by reference in the Registration Statement and (ii) for the period from the latest interim financial statements incorporated by reference in the Registration Statement, to the latest interim financial data available which should be no later than forty (40) days prior to the date of delivery of the Original Comfort Letter, there were any decreases, as compared with the corresponding period in the preceding year, in consolidated net interest income, other income, income before taxes or in the total or per share amounts of net income, except in all instances for changes or decreases which the Registration Statement discloses have occurred or may occur, or they shall state any specific changes or decreases; and (iv) the information set forth under the ~~Trust Indenture Act~~ captions “Summary — Consolidated Ratio of ~~1939~~Earnings to Fixed Charges and Preferred Stock Dividends,” “Summary – The Company,” “Capitalization,” “Selected Consolidated Financial and Other Data,” “Description of Capital Stock,” which is expressed in dollars (or percentages derived from such dollar amounts) and has been obtained from accounting records which are subject to the internal controls of the Company’s accounting system or which has been derived directly from such accounting records and analysis or computations, is in agreement with such records or computations. At the Closing Date and, as ~~amended~~ to the Option Shares, at the Option Closing Date, the Accountants shall have furnished to the Representative a letter, dated the date of its delivery, which shall confirm, on the basis of a review in accordance with the procedures set forth in the Original Comfort Letter, that nothing has come to their attention during the period from the date of the Original Comfort Letter referred to in the prior sentence to a date (specified in the ~~“Trust Indenture Act”)~~letter) not more than five business days prior to the Closing Date or the Option Closing Date, as the case may be, which would require any change in the Original Comfort Letter if it were required to be dated and delivered at the Closing Date or the Option Closing Date, as the case may be. In the event that the letters referred to above set forth any such changes, decreases or increases, it shall be a further condition to the obligations of the Underwriters that (A) such letters shall be accompanied by a written explanation of the Company as to the significance thereof, unless the Representative deems such explanation unnecessary, and ~~no qualification of an indenture~~ (B) such changes, decreases or increases do not, in ~~respect~~ the sole judgment of the ~~Securities under~~ Representative, make it impractical or inadvisable to proceed with the ~~Trust Indenture Act is required for the issuance, sale~~ purchase and delivery of the ~~Securities~~Shares as contemplated by the Registration Statement, as amended as of the date hereof. (iii) ~~The statements in~~ At the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”Closing Date and, as ~~supplemented~~ to the Option Shares, the Option Closing Date, there shall be furnished to the Representative an accurate certificate, dated the date of its delivery, signed by ~~“Tax Matters — United States Taxation”~~each of the Chief Executive Officer and the Chief Financial Officer of the Company, in form and substance satisfactory to the Representative, to the ~~extent~~ effect that ~~they constitute summaries of legal matters referred~~ to ~~therein, fairly summarize in all material respects the legal matters referred to therein.~~their knowledge: (ivi) ~~Based upon~~ Each signer of such ~~counsel’s participation in conferences with representatives of~~ certificate has carefully examined the ~~Province, counsel for~~ Registration Statement and the ~~Province~~ Prospectus and ~~their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that~~ (A) ~~the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment),~~ as of the date of ~~this Agreement~~such certificate, ~~contained an~~ (x) the Registration Statement does not contain any untrue statement of a material fact or ~~omitted~~ omit to state a material fact required to be stated therein or necessary in order to make the statements therein not ~~misleading;~~ misleading and (By) the ~~Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has~~ Prospectus does not ~~been requested to comment), as of the Time of Sale, contained an~~ contain any untrue statement of a material fact or ~~omitted~~ omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in ~~the~~ light of the circumstances under which they were made, not ~~misleading;~~ misleading and (B) since the Effective Date no event has occurred as a result of which it is necessary to amend or ~~(C)~~ supplement the ~~Final~~ Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements ~~therein,~~ therein not untrue or misleading in ~~the light~~ any material respect; (ii) Each of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of the ~~Province~~ Company contained in this Agreement ~~are~~ were, when originally made, and are, at the time such certificate is delivered, true and ~~correct, that~~ correct in all material respects; each of the ~~Province has complied with all agreements and satisfied all conditions on its part~~ covenants required herein to be performed ~~or satisfied at~~ by the Company on or prior to the ~~Closing Date~~date of such certificate has been duly, ~~that no~~ timely and fully performed in all material respects and each condition herein required to be complied with by the Company on or prior to the delivery of such certificate has been duly, timely and fully complied with in all material respects. (iii) No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto and no order directed at any document incorporated by reference in the Registration Statement or any amendment thereto or the Prospectus has been ~~issued~~ issued, and no proceedings for that purpose have been instituted or, to the Company’s knowledge, are threatened or ~~are~~ contemplated by the SEC. i) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New York. (j) The ~~Province~~ Shares shall be qualified for sale in such states and possessions as the Representative may reasonably request, and each such qualification shall be in effect and not subject to any stop order or other proceeding on the Closing Date and the Option Closing Date. (k) Prior to the Closing Date, the Shares shall have been accepted for listing on the NASDAQ, subject only to official notice of issuance. (l) The Company shall have furnished to the ~~Underwriters~~ Representative such certificates, letters and other documents, in addition to ~~counsel for the Underwriters such further certificates and documents~~ those specifically mentioned herein, as the ~~Representatives and such counsel~~ Representative may have reasonably ~~request. k) Subsequent~~ requested as to the ~~execution~~ accuracy and completeness at the Closing Date and the Option Closing Date of ~~this Agreement and prior~~ any statement in the Registration Statement or the Prospectus, as to the accuracy at the Closing ~~Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, in~~ Date and the ~~ratings accorded the debt securities~~ Option Closing Date of the ~~Province~~ representations and warranties of the Company, as to the performance by ~~any nationally recognized statistical rating agency in~~ the ~~United States~~Company of its obligations hereunder, or as to the fulfillment of the conditions concurrent and precedent to the obligations hereunder of the Underwriters. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are ~~reasonably~~ satisfactory in form and substance to the ~~Representatives~~Representative. The ~~Province~~ Company will furnish the ~~Underwriters~~ Representative with such conformed copies of such opinions, certificates, letters and other documents as ~~the Representatives~~ you shall reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.

Appears in 1 contract

Samples: Underwriting Agreement (W Holding Co Inc)

Conditions of the Obligations of the Underwriters. The ~~respective obligations~~ obligation of the several Underwriters to purchase and pay for the ~~Securities~~ Notes will be subject to the accuracy of the respective representations and warranties on the part of the ~~Province~~ Seller and World Omni herein, to the accuracy of the statements of the ~~representatives~~ respective officers of the ~~Province~~ Seller and World Xxxx made pursuant to the provisions hereof, to the performance by the ~~Province~~ Seller and World Omni of ~~its~~ their respective obligations hereunder ~~and with regard to the Securities~~ and to the following additional conditions precedent: (a) On the date of this Agreement, the Representative and the Seller shall have received a letter, dated the date thereof, of Xxxxxx Xxxxxxxx LLP ("Xxxxxx Xxxxxxxx") confirming that they are independent public accountants within the meaning of the Act and the Rules and Regulations, substantially in the form of the draft or drafts to which the Representative has previously agreed and otherwise in form and in substance satisfactory to the Representative and counsel for the Underwriters. (b) The Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 5(a) hereof. Prior to the Closing Date, no stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Province~~ Seller, World Omni or the ~~Representatives~~Representative, shall be contemplated by the ~~SEC;~~ Commission. (c) The Representative shall have received certificates of the President, any Vice President or the Treasurer or any Assistant Treasurer of each of the Seller and World Omni, each ~~Issuer Free Writing Prospectus~~dated the Closing Date, in which such officer shall state, in the case of (A) the Seller that (1) the representations and warranties of the Seller in each Basic Document to which it is a party and in this Agreement were true and correct as of the date therein indicated, (2) to the ~~extent required by Rule 433 under~~ best knowledge of such officer after reasonable investigation, the ~~Securities Act, shall have been filed~~ Seller has complied with ~~the SEC under the Securities Act;~~ all agreements and ~~the Final Prospectus shall have been filed with the SEC pursuant~~ satisfied all conditions on its part to ~~Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this Agreement. b) Subsequent to the execution of this Agreement and~~ be performed or satisfied hereunder at 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 are contemplated by the Commission and (3) subsequent to the date of this Agreement, there ~~shall not have occurred any~~ has been no material adverse change in the ~~financial~~condition, ~~economic~~ financial or ~~political condition~~ otherwise, or in the earnings, business affairs or business prospects of the ~~Province from that~~ Seller, except as set forth in or contemplated by the ~~Registration Statement~~Prospectus and (B) World Omni, that (1) the ~~Time~~ representations and warranties of ~~Sale Information~~ World Omni in each Basic Document to which it is a party and in this Agreement were true and correct as of the ~~Final~~ date therein indicated, (2) to the best knowledge of such officer after reasonable investigation, World Omni has complied with all agreements and satisfied all conditions on its part to be performed or satisfied hereunder and (3) subsequent to the date of this Agreement, there has been no material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of World Omni except as set forth in or contemplated by the Prospectus~~; and the Underwriters~~ . (d) The Representative shall have received: (1) The favorable opinion of Xxxxxxxxxx, on Xxxxxxxxxx & Xxxx, counsel to the ~~Closing Date~~Seller and World Omni, ~~a certificate~~ dated the Closing Date and ~~signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance~~ satisfactory to the Representatives to the effect set forth in the first clause of this Section 9(b). c) The Underwriters shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Province, dated the Closing Date, to the effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (ii) This Agreement and the Fiscal Agency Agreement have been duly authorized, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated the Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance ~~satisfactory~~ to ~~them~~ the Representative and ~~they believe that the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States~~ counsel for the ~~Province~~Underwriters, ~~dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion,~~ substantially to the effect that: (i) The ~~Securities are exempted securities under~~ Notes, when duly executed, authenticated and delivered in the manner contemplated in the Indenture, will be legal, valid and binding obligations of the Trust, enforceable against the Trust ~~Indenture Act~~ in accordance with their terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, receivership or other laws relating to creditors rights generally, and to general principles of ~~1939~~equity including principles of commercial reasonableness, ~~as amended~~ good faith and fair dealing (~~the “Trust Indenture Act”~~regardless of whether enforcement is sought in a proceeding at law or in equity), and ~~no qualification of an indenture in respect of~~ will be validly issued and outstanding and entitled to the ~~Securities under~~ benefits provided by the ~~Trust Indenture Act is required for the issuance, sale and delivery of the Securities~~Indenture. (ii) ~~The statements~~ Assuming the due authorization, execution and delivery thereof by the parties thereto, this Agreement and each of the Basic Documents (other than the Trust Agreement) to which the Trust, the Seller and World Omni is a party, will be enforceable against the Trust, the Seller and World Omni, as applicable, in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium, receivership or other laws relating to or affecting creditors' rights generally, and to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity), and except that the ~~Time~~ enforcement of ~~Sale Information~~ rights with respect to indemnification and ~~Final Prospectus under “Description~~ contribution obligations and provisions (a) purporting to waive or limit rights to trial by jury, oral amendments to written agreements or rights of ~~Bonds” and “Description~~ set off or (b) relating to submission to jurisdiction, venue or service of ~~Debt Securities and Warrants”~~process, ~~insofar as such statements constitute a summary~~ may be limited by applicable law or considerations of ~~documents referred to therein, fairly summarize in all material respects the documents referred to therein~~public policy. (iii) ~~The statements~~ To the knowledge of such counsel, there are no legal or governmental proceedings pending or threatened involving the Seller that are required to be disclosed in the ~~Time~~ Registration Statement other than those disclosed therein. For purposes of ~~Sale Information~~the opinion set forth in this paragraph, ~~and Final Prospectus under “Description~~ such counsel may not regard any legal or governmental actions, investigations or proceedings to be "threatened" unless the potential litigant or executive, legislative, judicial, administrative or regulatory bodies of ~~Debt Securities and Warrants —~~ the State of New York or the United States ~~Federal Income Taxation”~~of America (each, ~~as supplemented by “Tax Matters — United States Taxation”,~~ a "Governmental Authority") has communicated orally or in writing to the ~~extent that they constitute summaries of legal matters referred~~ Seller a present intention to ~~therein~~initiate such actions, ~~fairly summarize in all material respects~~ investigations or proceedings against the ~~legal matters referred to therein~~Seller. (iv) ~~Based upon~~ The statements in the Prospectus Supplement under the captions "Summary of Terms," "Risk Factors," "Description of the Notes" and "Description of the Trust Documents" and in the Base Prospectus under the captions "Risk Factors," "Description of the Securities," "Description of the Notes" and "Description of the Trust Documents" insofar as such statements purport to summarize certain terms or provisions of the Notes and the Basic Documents provide a fair summary of such provisions. (v) The statements in the Prospectus Supplement under the captions "Federal Income Tax Consequences" and "ERISA Considerations" and in the Base Prospectus under the captions "Some Legal Aspects of the Receivables," "Federal Income Tax Consequences" and "ERISA Considerations" to the extent such statements relate to the Notes and purport to summarize matters of federal law or legal conclusions with respect thereto have been reviewed by such counsel and are correct in all material respects. (vi) The issuance and sale by the Seller of the Notes to the Underwriters pursuant to this Agreement, the compliance by the Seller or World Omni with the provisions of the Basic Documents to which either is a party and the consummation by the Seller or World Omni of the transactions therein contemplated do not require any consent, approval, license, authorization or validation of, or filing, recording or registration with, any Governmental Authority pursuant to those laws, rules, statutes and regulations of the State of New York and of the United States of America which, in such counsel~~’s participation in conferences with representatives~~ 's experience, are normally applicable to transactions of the ~~Province~~type contemplated by the Basic Documents ("Applicable Laws") to be obtained on the part of the Seller or World Omni, ~~counsel for the Province~~ except those that may be required under state securities or blue sky laws, and ~~their examination of specified documents~~such other approvals that have been obtained and, ~~no facts have come~~ to such counsel~~’s attention~~ 's knowledge, are in effect. (vii) The compliance by the Seller with the provisions of the Basic Documents to which ~~caused~~ it is a party and the consummation of the transactions therein contemplated (a) do not result in a violation of any provision of the certificate of formation or limited liability company agreement of the Seller or any Applicable Laws applicable to the Seller, and (b) based on the Officer's Certificate attached to such opinion (and a review of the documents, if any, listed in such Officer's Certificate) does not breach or result in a violation of, or default under, or result in the creation or imposition of any lien (except as permitted by the Basic Documents) upon any property or assets of the Company pursuant to the terms of (i) any indenture, mortgage, deed of trust, agreement or instrument to which the Seller is a party or by which the Seller is bound or to which any of the property or assets of the Seller is subject, or (ii) any judgment, decree or order known to such counsel which is applicable to ~~believe that~~ the Seller and, pursuant to any Applicable Laws, is issued by any Governmental Authority having jurisdiction over the Seller or its properties. (Aviii) To the knowledge of such counsel, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Registration Statement (or to be filed as exhibits thereto other than ~~the financial statements and other financial data contained~~ those described or referred to therein or ~~omitted therefrom~~filed as exhibits thereto. (ix) Neither the Seller nor the Trust is an "investment company" as such term is defined in the Investment Company Act. (x) The Registration Statement, as of its effective date, and the Prospectus, as of the date thereof (in each case, with the exception of any information incorporated by reference therein and any numerical, financial, statistical and quantitative data included therein and any exhibits thereto, as to which such counsel expresses no view), appeared on their respective faces to be appropriately responsive in all material respects to the requirements of the Act, and the Rules and Regulations thereunder applicable to such documents as of the relevant date. (xi) Such counsel shall advise as to the effective date of the Registration Statement and that to such counsel's knowledge, no stop order with respect thereto has ~~not~~ been ~~requested~~ issued by the Commission. (xii) On the basis of the information gained by such counsel in the course of the representation of the Seller and World Omni and examination of the documents referred to ~~comment)~~in such counsel's Opinion Letter, considered in light of such counsel's understanding of applicable law and the experience such counsel has gained through such counsel's practice, nothing has come to such counsel's attention in the course of such counsel's review of the Registration Statement and the Prospectus which causes such counsel to believe that, as of the effective date of ~~this Agreement~~the Registration Statement, the Registration Statement 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~~; (B) the Time~~ , or that as of ~~Sale Information (other than the financial statements and other financial data contained therein~~ its date or ~~omitted therefrom, as to which such counsel has not been requested to comment),~~ as of the ~~Time~~ date of ~~Sale~~such letter, the Prospectus contained an or contains any untrue statement of a material fact or omitted or omits to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; ~~or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom,~~ it being understood that such counsel expresses no view as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary any information incorporated by reference in ~~order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion,~~ the Registration Statement ~~and~~ or the ~~Final~~ Prospectus ~~(other than the financial statements and other financial data contained therein~~ or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the ~~matters specified in subdivisions (i), and (iv) (but only as~~ adequacy or accuracy of the ~~date of this Agreement as to clause (A)) of paragraph (e) of this Section 9~~financial, ~~subject to such qualifications and based upon such assumptions as are customary~~ numerical, statistical or quantitative information included in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of the Province in this Agreement are true and correct, that the Province has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date, that no stop order suspending the effectiveness of the Registration Statement or the Prospectus. (xiii) The Indenture has been ~~issued and no proceedings for that purpose have been instituted or are contemplated by~~ duly qualified under the ~~SEC~~Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"). i(xiv) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of America, the Province or the State of New YorkNotes will constitute "indebtedness" for federal income tax purposes. j) The Province shall have furnished to the Underwriters and to counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. k) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The Province will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.

Appears in 1 contract

Samples: Underwriting Agreement (World Omni Auto Receivables LLC)

Conditions of the Obligations of the Underwriters. The ~~respective obligations~~ obligation of the ~~several~~ Underwriters to purchase and pay for the ~~Securities~~ Notes will be subject to the accuracy of the representations and warranties on the part of the ~~Province~~ Transferor, ACCS and the Bank herein, to the accuracy of the statements of ~~the representatives~~ officers of the ~~Province~~ Transferor and ACCS made pursuant to the provisions hereof, to the performance by the ~~Province~~ Transferor and ACCS of ~~its~~ their respective obligations hereunder ~~and with regard to the Securities~~ and to the following additional conditions precedent: (a) ~~Prior~~ On or prior to the date of this Agreement, the Representative shall have received a letter, dated the date of this Agreement, of [_____________________], confirming that they are independent public accountants within the meaning of the Act and the applicable published Rules and Regulations thereunder, substantially in the form heretofore agreed to and otherwise in form and in substance satisfactory to the Representative and its counsel. (b) The Prospectus shall have been filed with the Commission in accordance with the Rules and Regulations and Section 5(a) of this Agreement; and, prior to the Closing Date, no stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Province~~ Transferor or the ~~Representatives~~Representative, shall be contemplated by the SEC; and each Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act, shall have been filed with the SEC under the Securities Act; and the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this AgreementCommission. b(c) Subsequent to the execution and delivery of this ~~Agreement and prior to the Closing Date~~Agreement, there shall not have occurred (i) any material adverse ~~change~~ change, or any development involving a prospective material adverse change, in or affecting particularly the Issuer or the business or properties of the Bank, ACCS or the Transferor; (ii) 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; (iii) a general moratorium on commercial banking activities by Federal or New York State authorities; or (iv) 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, which, in any such case, is, in the ~~financial, economic or political condition~~ reasonable judgment of the ~~Province from that set forth~~ Representative, so material and adverse as to make it impracticable or inadvisable to proceed with the completion and sale of and payment for the Notes on the terms and in the Registration Statement, the Time of Sale Information and the Final Prospectus; and the Underwriters shall have received, on the Closing Date, a certificate dated the Closing Date and signed by the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth manner contemplated in the ~~first clause of this Section 9(b)~~Prospectus. c(d) The ~~Underwriters~~ Representative shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Provinceopinion, dated the Closing Date, to of Michxxx X. Xxxxx, Xxsistant General Counsel for Associates First Capital Corporation, as counsel for the effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (ii) This Agreement Transferor, ACCS and the ~~Fiscal Agency Agreement have been duly authorized~~Bank, executed and delivered by the Province and each is a valid and legally binding agreement of the Province, except as rights to indemnity and contribution hereunder may be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and effect. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. d) The Underwriters shall have received an opinion of Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada, dated the Closing Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance ~~satisfactory~~ to ~~them~~ the Representative and ~~they believe that the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States~~ its counsel ~~for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinion,~~ to the effect that: (i) The ~~Securities are exempted securities~~ Transferor is a corporation in good standing, duly organized and validly existing under the ~~Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), and no qualification of an indenture in respect~~ laws of the ~~Securities~~ State of Delaware; ACCS is a corporation in good standing, duly organized and validly existing under the ~~Trust Indenture Act is required for the issuance, sale and delivery~~ laws of the ~~Securities. (ii) The statements~~ State of Delaware; the Bank is a national banking association in good standing, duly organized and validly existing under the ~~Time~~ laws of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to therein. (iii) The statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United States Federal Income Taxation”, as supplemented by “Tax Matters — United States Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. (iv) Based upon such counsel’s participation in conferences with representatives of the Province, counsel for the Province and their examination of specified documents, no facts have come to such counsel’s attention which caused such counsel to believe that (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the date of this Agreement, contained 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; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of the Time of Sale, 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 under which they were made, not misleading; or (C) the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment), as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United Kingdom in respect of such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an opinion of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date, as to the matters specified in subdivisions (i), and (iv) (but only as of the date of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States of America; and each of the Transferor, ACCS and the Bank (each collectively referred to in ~~respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph~~ this subsection (d) ~~of this Section 9~~ as ~~to matters of British Columbian and Canadian law and procedure. h~~an "Associates Entity") ~~The Underwriters shall have received a~~ is authorized by its certificate of ~~the Minister~~ incorporation or articles of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officerassociation, as the case may be, to transact the business in which it is engaged and is neither required to qualify, nor to register as a foreign corporation, in any state in order to conduct its business as presently conducted, except where the failure to so qualify or register would not have a material adverse effect upon the Noteholders; (ii) Each Associates Entity has full corporate power and authority to enter into and perform its obligations under each Transaction Document and this Agreement to which it is a party; (iii) Each Associates Entity has the corporate power and authority and legal right to acquire, own and transfer, and, in the case of the Bank, to service, the Receivables; (iv) Each of the Transaction Documents and this Agreement has been duly authorized, executed and delivered by each Associates Entity that is a party thereto; (v) No consent, approval, authorization or order of any court or governmental agency or body is required for (a) the execution and delivery by any Associates Entity of any Transaction Document or this Agreement to which such Associates Entity is a party or the performance by such Associates Entity of its obligations thereunder, or (b) the issuance and sale of the Notes; (vi) Neither the execution and delivery of the Transaction Documents and this Agreement by any Associates Entity that is party thereto nor the performance by such Associates Entity of the transactions therein contemplated nor the fulfillment of the terms thereof does or will result in any violation of any statute or regulation or any order or decree of any court or governmental authority binding upon such Associates Entity or its property, or conflict with, or result in a breach or violation of any term or provision, or result in a default under any of the terms and provisions, of such Associates Entity's certificate of incorporation or articles of association, as the case may be, or by-laws or any material indenture, loan agreement or other material agreement known to such counsel to which such Associates Entity is a party or by which such Associates Entity is bound; (vii) There is no legal or governmental proceeding pending to which any Associates Entity is a party or to which any Associates Entity is subject which, individually or in the aggregate (a) would have a material adverse effect on the ability of such Associates Entity to perform its obligations under the Transaction Documents or this Agreement, (b) assert the invalidity of any Transaction Document, this Agreement, the Transferor Certificate or the Ownership Interest Certificate, (c) seek to prevent the issuance, sale or delivery of the Notes or any of the transactions contemplated by the Transaction Documents or this Agreement or (d) seek to adversely affect the federal income tax consequences of the Notes; and (viii) The Registration Statement has become effective under the Act and to the best of ~~his or her knowledge after reasonable investigation~~such counsel's knowledge, shall state that the representations and warranties of the Province in this Agreement are true and correct, that the Province has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or ~~are contemplated by~~ threatened under the ~~SEC~~Act. (e) The Representative shall have received an opinion dated the Closing Date, of Orrixx, Xxrrxxxxxx & Xutcxxxxx XXX, special counsel to the Transferor, ACCS and the Bank, (i) ~~The purchase and sale~~ Each of the ~~Securities in accordance with~~ Transaction Documents, (other than the ~~provisions hereof shall not be prohibited by any statute~~Trust Agreement) to which the Transferor, ~~order~~ACCS, ~~rule or regulation promulgated by any legislative~~and the Bank is a party constitutes the legal, ~~executive or regulatory body or authority~~ valid and binding agreement of ~~Canada~~the Transferor, ACCS and the ~~United States~~ Bank, as the case may be, under the laws of ~~America, the Province or~~ the State of New York, enforceable against each such Person in accordance with its terms, subject to (w) limitations imposed by bankruptcy, insolvency, reorganization, liquidation, arrangement, fraudulent conveyance, moratorium, receivership, conservatorship, readjustment of debts, creditors' rights or other laws relating to or affecting the rights of creditors generally or the rights of creditors of national banking associations; (x) rights to indemnification and contribution which may be limited by applicable law and equitable principles or otherwise unenforceable as against public policy; (y) the unenforceability under certain circumstances of provisions imposing penalties, forfeiture, late payment charges, or an increase in interest rate upon delinquency in payment or the occurrence of any event of default; and (z) general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, and the possible unavailability of specific performance or injunctive relief, regardless of whether such enforceability is considered in a proceeding in equity or at law. j(ii) ~~The Province shall~~ This Agreement constitutes the legal, valid and binding obligation of the Transferor and ACCS under the laws of the State of New York, enforceable against the Transferor and ACCS in accordance with its terms, subject to (w) limitations imposed by bankruptcy, insolvency, reorganization, liquidation, arrangement, fraudulent conveyance, moratorium, receivership, conservatorship, readjustment of debts, creditors' rights or other laws relating to or affecting the rights of creditors generally or the rights of creditors of national banking associations; (x) rights to indemnification and contribution which may be limited by applicable law and equitable principles or otherwise unenforceable as against public policy; (y) the unenforceability under certain circumstances of provisions imposing penalties, forfeiture, late payment charges, or an increase in interest rate upon delinquency in payment or the occurrence of any event of default; and (z) general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, and the possible unavailability of specific performance or injunctive relief, regardless of whether such enforceability is considered in a proceeding in equity or at law. (iii) When the Notes have ~~furnished~~ been duly executed and delivered by the Issuer, authenticated by the Indenture Trustee in accordance with the terms of the Indenture and delivered to and paid for by the Underwriters ~~and to counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. k) Subsequent to the execution of~~ in accordance with this ~~Agreement and prior to the Closing Date~~Agreement, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents they will be ~~in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The Province~~ validly issued and outstanding, will ~~furnish the Underwriters with such conformed copies of such opinions~~constitute legal, ~~certificates, letters~~ valid and ~~documents as the Representatives reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all~~ binding obligations of the ~~Underwriters hereunder may be terminated with respect to Securities at~~Issuer, ~~or at any time prior to,~~ enforceable against the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable Issuer in accordance with ~~Section 14~~ their terms and will be entitled to the benefits of ~~this Agreement~~the Indenture, subject to (w) limitations imposed by bankruptcy, insolvency, reorganization, liquidation, arrangement, fraudulent conveyance, moratorium, receivership, conservatorship, readjustment of debts, creditors' rights or other laws relating to or affecting the rights of creditors generally or the rights of creditors of national banking associations; (x) rights to indemnification and contribution which may be limited by applicable law and equitable principles or otherwise unenforceable as against public policy; (y) the unenforceability under certain circumstances of provisions imposing penalties, forfeiture, late payment charges, or an increase in interest rate upon delinquency in payment or the occurrence of any event of default; and (z) general principles of equity, including, without limitation, concepts of materiality, reasonableness, good faith and fair dealing, and the possible unavailability of specific performance or injunctive relief, regardless of whether such enforceability is considered in a proceeding in equity or at law. (iv) The statements in the Base Prospectus under the headings "Risk Factors--If a conservator or receiver were appointed for Associates National Bank (Delaware), or if Associates Credit Card Services, Inc. or Associates Credit Card Receivables Corp. became a debtor in a bankruptcy case, delays or reductions in payment of your notes could occur," "Material Legal Aspects of the Receivables," "ERISA Considerations" and "Federal Income Tax Consequences" and the statements in the Prospectus Supplement under the headings "Summary of Terms--Tax Status" and "--ERISA Considerations" and "ERISA Considerations," to the extent that they constitute matters of law or legal conclusions with respect thereto, have been reviewed by us and are correct in all material respects.

Appears in 1 contract

Samples: Underwriting Agreement (Associates Credit Card Receivables Corp)

Conditions of the Obligations of the Underwriters. The ~~respective~~ obligations of the ~~several~~ Underwriters to purchase and pay for the ~~Securities~~ Notes will be subject to the ~~accuracy~~ accuracy, as of the date hereof and as of the Closing Date, of the representations and warranties on of Collegiate Funding and the ~~part of the Province~~ Sponsor herein, to the accuracy of the written statements of officers of Collegiate Funding, the ~~representatives of~~ Sponsor, the ~~Province~~ Seller, the Master Servicer, the Administrator, the Sub-Servicer, the Custodian, the Originating Agent, the Delaware Trustee, the Indenture Trustee and the Eligible Lender Trustee made pursuant to the provisions ~~hereof~~of this Section, to the performance by Collegiate Funding and the ~~Province~~ Sponsor of ~~its~~ their obligations hereunder ~~and with regard to the Securities~~ and to the following additional conditions precedent: (a) ~~Prior~~ The Underwriters shall have received a letter, of Ernst & Young, LLP, dated on or prior to the date hereof, confirming that such accountants are independent public accountants within the meaning of the Act, and substantially in the form of the drafts to which the Underwriters have previously agreed and otherwise in form and substance satisfactory to the Underwriters and counsel for the Underwriters (i) regarding certain numerical information contained in the Prospectus and (ii) relating to certain agreed-upon procedures. (b) The Prospectus shall have been filed with the Commission in accordance with the Act and Section 5(a) hereof. On or prior to the Closing Date, no stop order suspending the effectiveness of the Registration ~~Statement, as amended from time to time,~~ Statement shall have been issued and no proceedings for that purpose shall have been instituted or, to the knowledge of the ~~Province or the Representatives~~Sponsor, shall be contemplated by the SEC; and each Issuer Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act, shall have been filed with the SEC under the Securities Act; and the Final Prospectus shall have been filed with the SEC pursuant to Rule 424 not later than 5:00 p.m. New York City time, on the second business day following the date of this AgreementCommission. b(c) Subsequent to the execution and delivery of this ~~Agreement and prior to the Closing Date~~Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, in or affecting the Financed Student Loans or particularly the business or properties of the Trust, Collegiate Funding, the Sponsor, the Seller, the Master Servicer, the Sub-Servicer, the Custodian, the Originating Agent, the Administrator or the LIBOR Swap Counterparty, which, in the sole discretion of the Underwriters, materially impairs the investment quality of the Notes; (ii) any downgrading in the rating of any securities of Collegiate Funding, the Sponsor, the Seller, the Master Servicer, the Sub-Servicer, the Custodian or the Originating Agent, 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 such debt securities (other than an 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, American Stock Exchange, or NASDAQ National Market, or any setting of minimum or maximum prices for trading on such exchange; (iv) any banking moratorium declared by Federal or New York authorities; (v) any outbreak or escalation of hostilities in which the United States is involved, any declaration of war or national emergency by Congress, any material ~~adverse change~~ disruption in the ~~financial~~financial markets or any other substantial national or international calamity or emergency if, ~~economic or political condition~~ in the sole judgment of the ~~Province from that set forth in~~ Underwriters, the effect of any such outbreak, escalation, declaration, material disruption, calamity or emergency makes it impractical or inadvisable to proceed with the public offering or the delivery of the Notes as contemplated by the Registration Statement, as amended as of the ~~Time~~ date hereof; (vi) a material disruption has occurred in securities settlement or clearance services in the United States; or (vii) any event or development which makes any statement made in the Registration Statement or Prospectus untrue or which, in the opinion of ~~Sale Information~~ the Sponsor or Collegiate Funding and ~~the Final Prospectus; and~~ their counsel or the Underwriters ~~shall have received~~and their counsel, on requires the filing of any amendment to or change in the Registration Statement or Prospectus in order to state a material fact required by any law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Registration Statement or Prospectus to reflect such event or development would, in the opinion of the Representatives, materially adversely affect the market for the Notes. (d) On the Closing Date, ~~a certificate dated the Closing Date and signed by the Minister of Finance~~ each of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance satisfactory to the Representatives to the effect set forth in the first clause of this Section 9(b). c) The Underwriters shall have received an opinion of the Attorney General of the Province, the Deputy Attorney General of the Province, Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as Canadian counsel to the Province, dated the Closing Date, to the effect that under the laws of British Columbia and Canada and subject to such qualifications and based on such assumptions as are customary in British Columbia in respect of an opinion of this type: (i) The Province has full power and authority to execute and deliver this Agreement and to issue and sell the Securities. (ii) This Agreement Basic Documents and the ~~Fiscal Agency Agreement~~ Notes shall have been duly authorized, executed and delivered by the ~~Province and each is a valid and legally binding agreement of the Province~~parties thereto, ~~except as rights to indemnity and contribution hereunder may~~ shall be limited under applicable law. (iii) The Securities, when duly executed, authenticated and delivered to and paid for by the Underwriters in accordance with the provisions of this Agreement and the Fiscal Agency Agreement, will constitute valid, legally binding, direct and unconditional general obligations of the Province in accordance with their respective terms and will rank equally and ratably with all other unsecured and unsubordinated indebtedness of the Province outstanding on the date of issue of the Securities. (iv) All authorizations, approvals, consents, orders and waivers required under British Columbian and Canadian law to permit the execution and delivery of this Agreement and the Fiscal Agency Agreement, the issuance of the Securities and the performance by the Province of its obligations hereunder and thereunder have been obtained and are in full force and ~~effect~~effect and no default shall exist thereunder, and the Indenture Trustee and the Underwriters shall each have received a fully executed copy thereof or, with respect to the Notes, a conformed copy thereof. The Basic Documents and the Notes shall be substantially in the forms heretofore provided to the Underwriters. (v) Proceedings may be brought against the Province in the Supreme Court of British Columbia and no applicable law requires the consent of any public official or authority for proceedings to be brought or judgment to be obtained against the Province arising out of or relating to obligations under the Securities, nor is any immunity from jurisdiction available to the Province in any proceedings in the Supreme Court of British Columbia brought in accordance with the Crown Proceeding Act (British Columbia) and within applicable limitation periods, whether or not a party to the proceedings or the holder of a Security is resident within British Columbia or is a citizen of Canada. (vi) The statements in the Time of Sale Information and Final Prospectus under the caption “Description of Bonds”, insofar as such statements constitute a summary of the documents referred to therein, are accurate in all material respects, subject to the qualifications therein stated. (vii) The statements in the Time of Sale Information and Final Prospectus under the caption “Tax Matters—Canadian Taxation” (which references the statements under “Description of Debt Securities and Warrants—Canadian Taxation”), to the extent that they constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. de) The Underwriters shall have received an opinion of ~~Oxxxx, Hxxxxx & Harcourt LLP, Canadian counsel to the Underwriters, given in respect of the laws of British Columbia and Canada~~XxXxxxx Xxxx, dated the Closing ~~Date, as to the matters specified in subdivisions (i) through (vii) of paragraph (c) of this Section 9, subject to such qualifications~~ Date and based on such assumptions as are customary in British Columbia in respect of an opinion of this type. In rendering such opinion, Oxxxx, Hxxxxx & Harcourt LLP may rely upon a certificate (which may be unaudited) of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives as to factual matters. The opinion shall state in effect that on the basis of an independent examination of such records, certificates and other documents and such questions of law as Oxxxx, Hxxxxx & Harcourt LLP have deemed necessary or appropriate, the opinion of the Attorney General, the Deputy Attorney General, the Assistant Deputy Attorney General, Legal Services Branch, Ministry of Attorney General of the Province, a Senior Legal Counsel, Legal Services Branch, Ministry of Attorney General of the Province or another officer of the Ministry of Attorney General of the Province satisfactory to the Representatives, as the case may be, Canadian counsel to the Province, is in form and substance ~~satisfactory~~ to ~~them and they believe that~~ the Representatives are justified in relying thereon. e) The Underwriters shall have received the opinion of Sxxxxxxx & Sterling LLP, United States counsel for the Province, dated the Closing Date, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinionUnderwriters, to the effect that: (i) ~~The Securities are exempted securities~~ Each of Collegiate Funding, the Master Servicer and the Administrator has been duly formed and is validly existing as a limited liability company in good standing under the ~~Trust Indenture Act~~ laws of ~~1939~~its jurisdiction of organization, ~~as amended (the “Trust Indenture Act”)~~with full power and authority to own its properties and conduct its business, and ~~no qualification~~ is duly qualified to transact business and is in good standing in each jurisdiction in which its failure to qualify would have a material adverse effect upon transactions contemplated by the Basic Documents and its business or the ownership of ~~an indenture in respect of the Securities under the Trust Indenture Act is required for the issuance, sale and delivery of the Securities~~its property. (ii) ~~The statements~~ Each of the Basic Documents to which Collegiate Funding, the Master Servicer or the Administrator is a party is the legal, valid and binding obligation of Collegiate Funding, the Master Servicer and the Administrator, as applicable, enforceable against Collegiate Funding, the Master Servicer and the Administrator in the Time of Sale Information and Final Prospectus under “Description of Bonds” and “Description of Debt Securities and Warrants”, insofar as such statements constitute a summary of documents referred to therein, fairly summarize in all material respects the documents referred to thereinaccordance with its terms. (~~iii~~iiii) ~~The statements~~ Neither the execution, delivery and performance by Collegiate Funding, the Master Servicer or the Administrator, respectively, of the Basic Documents to which it is a party, nor the consummation by Collegiate Funding, the Master Servicer or the Administrator, as applicable, of the transactions contemplated thereby, will conflict with or result in a breach of any of the terms or provisions of, or constitute a default under, or result in the ~~Time~~ creation or imposition of ~~Sale Information~~any lien, ~~and Final Prospectus under “Description~~ charge or encumbrance upon any of ~~Debt Securities and Warrants — United States Federal Income Taxation”~~the property or assets of Collegiate Funding, the Master Servicer or the Administrator, as ~~supplemented by “Tax Matters — United States Taxation”~~applicable, pursuant to the ~~extent that they constitute summaries~~ terms of ~~legal matters referred~~ the formation documents of Collegiate Funding, the Master Servicer or the Administrator, as applicable, or any statute, rule, regulation or order of any governmental agency or body, or any court having jurisdiction over Collegiate Funding, the Master Servicer or the Administrator, as applicable, or its properties, or any agreement or instrument known to ~~therein~~such counsel after due investigation to which Collegiate Funding, ~~fairly summarize in all material respects~~ the ~~legal matters referred to therein~~Master Servicer or the Administrator, as applicable, is a party or by which Collegiate Funding, the Master Servicer or the Administrator, as applicable, or any of its properties is bound. (iv) ~~Based upon such counsel’s participation~~ No authorization, license, approval, consent or order of, or filing with, any court or governmental agency or authority is necessary in ~~conferences~~ connection with ~~representatives~~ the execution, delivery and performance by Collegiate Funding, the Master Servicer or the Administrator, respectively, of the ~~Province~~Basic Documents to which it is a party, ~~counsel~~ except for ~~the Province~~ those which have been obtained and ~~their examination of specified documents,~~ except for those that may be required under state securities or Blue Sky laws. (v) There are no ~~facts have come~~ legal or governmental proceedings known to ~~such counsel’s attention which caused~~ such counsel to ~~believe that (A) the Registration Statement (other than the financial statements and other financial data contained therein or omitted therefrom, as~~ be pending to which Collegiate Funding, the Master Servicer or the Administrator is a party or of which any property of Collegiate Funding, the Master Servicer or the Administrator is the subject, nor are any such proceedings known to such counsel ~~has not been requested~~ to ~~comment), as~~ be threatened or contemplated by governmental authorities or threatened by others (i) asserting the invalidity of all or any part of the date of this Agreement, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (B) the Time of Sale Information (other than the financial statements and other financial data contained therein or omitted therefrom, as Basic Documents to which ~~such counsel has not been requested to comment)~~Collegiate Funding, ~~as of~~ the ~~Time of Sale~~Master Servicer or the Administrator is a party, 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 under which they were made, not misleading; or (Cii) that could materially adversely affect the ~~Final Prospectus (other than~~ ability of Collegiate Funding, the ~~financial statements and other financial data contained therein~~ Master Servicer or ~~omitted therefrom, as~~ the Administrator to perform its obligations under Basic Documents to which it is a party. Such opinion may contain such ~~counsel has not been requested to comment)~~assumptions, as of its date or the Closing Date, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, and, in such counsel’s opinion, the Registration Statement and the Final Prospectus (other than the financial statements and other financial data contained therein or omitted therefrom, as to which such counsel has not been requested to comment) appear on their face to be appropriately responsive in all material respects to the requirements of the Securities Act and the applicable rules and regulations of the SEC thereunder. f) The Underwriters shall have received an opinion of Linklaters LLP, United Kingdom counsel for the Province, dated the Closing Date, subject to such qualifications and ~~based upon such assumptions~~ limitations as are customary in opinions of this type and are reasonably acceptable to counsel to the ~~United Kingdom in respect of~~ Underwriters. In rendering such opinion, to the effect that the statements in the Time of Sale Information, and Final Prospectus under “Description of Debt Securities and Warrants — United Kingdom Taxation” as supplemented by “Tax Matters — United Kingdom Taxation”, to the extent such counsel may state that they ~~constitute summaries of legal matters referred to therein, fairly summarize in all material respects the legal matters referred to therein. g) The Underwriters shall have received an~~ express no opinion ~~of Dxxxx Xxxx & Wxxxxxxx LLP, United States counsel for the Underwriters, dated the Closing Date,~~ as to the ~~matters specified in subdivisions (i), and (iv) (but only as~~ laws of any jurisdiction other than the ~~date~~ federal law of this Agreement as to clause (A)) of paragraph (e) of this Section 9, subject to such qualifications and based upon such assumptions as are customary in the United States in respect of such opinions. In considering such opinion, Dxxxx Xxxx & Wxxxxxxx LLP may rely on the opinion of counsel named in paragraph (d) of this Section 9 as to matters of British Columbian and Canadian law and procedure. h) The Underwriters shall have received a certificate of the Minister of Finance of the Province, the Deputy Minister of Finance of the Province or another officer of the Ministry of Finance of the Province satisfactory to the Representatives, dated the Closing Date, in which such Minister, Deputy Minister or other officer, as the case may be, to the best of his or her knowledge after reasonable investigation, shall state that the representations and warranties of the Province in this Agreement are true and correct, that the Province has complied with all agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been instituted or are contemplated by the SEC. i) The purchase and sale of the Securities in accordance with the provisions hereof shall not be prohibited by any statute, order, rule or regulation promulgated by any legislative, executive or regulatory body or authority of Canada, the United States of ~~America,~~ America (excluding federal securities and tax laws) and the ~~Province or~~ laws of the State of ~~New York~~Virginia. j) The Province shall have furnished to the Underwriters and to counsel for the Underwriters such further certificates and documents as the Representatives and such counsel reasonably request. k) Subsequent to the execution of this Agreement and prior to the Closing Date, there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any placing on credit watch with negative implications, in the ratings accorded the debt securities of the Province by any nationally recognized statistical rating agency in the United States. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Representatives. The Province will furnish the Underwriters with such conformed copies of such opinions, certificates, letters and documents as the Representatives reasonably request. If any of the above conditions shall not have been fulfilled as reasonably contemplated herein, this Agreement and all obligations of the Underwriters hereunder may be terminated with respect to Securities at, or at any time prior to, the Closing Date by the Representatives on behalf of the Underwriters, without any liability on the part of any Underwriter to the Province or of the Province to any Underwriter, except as provided in Section 6, Section 10 and Section 13 hereof. Notice of such cancellation shall be given as soon as practicable in accordance with Section 14 of this Agreement.

Appears in 1 contract

Samples: Underwriting Agreement (Collegiate Funding Services Education Loan Trust 2005-A)

Common use of Conditions of the Obligations of the Underwriters Clause in Contracts