Conditions of Your Obligations. Your obligations as agent of the ------------------------------ Company to initiate solicitations of offers to purchase Notes and to continue such solicitations, as the case may be, and your obligations to purchase Notes as principal pursuant to any Terms Agreement or otherwise, shall be subject to the continuing accuracy of the representations and warranties on the part of the Company contained herein, to the accuracy of the statements of the Company's officers made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by the Company of all covenants and agreements contained herein on its part to be performed and observed and to the following additional conditions: (a) An order or orders of the Commission pursuant to the 1935 Act permitting the issuance and sale of the relevant amount of Notes shall be in full force and effect and shall contain no provision unacceptable to you or the Company (but all provisions of such order or orders heretofore entered, copies of which have heretofore been delivered to you, are deemed acceptable to you and the Company, and all provisions of such order or orders hereafter entered shall be deemed acceptable to you and the Company unless within 24 hours after receiving a copy of any such order any party to this Agreement shall give notice to the other parties to the effect that such order contains an unacceptable provision). (b) You shall receive on the Closing Date the opinion of Troutman Sanders LLP, dated the Closing Date, substantially in thx xxxx xttachex hereto as Exhibit B. (c) You shall receive (i) on the Closing Date, (ii) on any date that the Registration Statement or the Prospectus shall be amended or supplemented (other than by an amendment or supplement providing solely for the specification of the variable terms of the Notes commonly included in a pricing supplement or an amendment or supplement relating solely to an offering of securities other than the Notes), including an amendment effected by the filing of a document that is incorporated by reference into the Registration Statement or Prospectus (other than (A) a Current Report on Form 8-K containing only information responsive to Item 5 or Item 9 thereof and any exhibits relating to such information, (B) the proxy materials of the Company that are distributed in connection with the annual meeting of shareholders and do not contain disclosures pursuant to Items 11, 12, 13, 14, 15 or 16 of Schedule 14A or (C) an amendment to the Company's annual report on Form 10-K filed solely pursuant to General Instruction A to Form 11-K) and (iii) each time, if so indicated in the applicable Terms Agreement or otherwise, the Company sells Notes to you as principal, the legal opinion of McGuireWoods LLP or other counsel satisfactory to you in your reasonable judgment, dated the Closing Date, the date of such amendment, supplement, incorporation by reference or settlement date, relating to a sale of Notes pursuant to a Terms Agreement or otherwise, as the case may be, substantially in the form attached hereto as Exhibit C. In lieu of such opinion to be delivered upon such amendment, supplement, incorporation by reference or settlement date relating to a sale of Notes under a Terms Agreement or otherwise, each counsel last furnishing such an opinion to you shall furnish you with a letter to the effect that you may rely upon such last opinion to the same extent as though it were dated the date of such letter authorizing reliance (except that statements in such last opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such letter authorizing reliance). (d) You shall receive (i) on the Closing Date, (ii) on any date that the Registration Statement or the Prospectus shall be amended or supplemented to include additional financial information (other than by an amendment or supplement relating solely to the issuance and/or offering of securities other than the Notes), including an amendment effected by the filing of a document that is incorporated by reference into the Registration Statement or Prospectus (other than (A) a Current Report on Form 8-K containing only information responsive to Item 5 or Item 9 thereof and any exhibits relating to such information or (B) the proxy materials of the Company that do not contain disclosures pursuant to Items 11, 12, 13, 14, 15 or 16 of Schedule 14A) and (iii) each time, if so indicated in the applicable Terms Agreement or otherwise, the Company sells Notes to you as principal, from Deloitte & Touche LLP, or another independent public accounting firm satisfactory to you, a letter addressed to you, dated the Closing Date, the date of such amendment, supplement, incorporation or settlement date relating to a sale pursuant to a Terms Agreement or otherwise, as the case may be, containing statements and information of the type ordinarily included in accountants' SAS 72 "comfort letters" to underwriters with respect to financial statements and certain financial information contained or incorporated by reference into the Prospectus, including any pro forma financial information. (e) Since the date of the most recent audited or unaudited financial statements included in or incorporated by reference in the Registration Statement and Prospectus, and, in the case of your obligation to solicit offers to purchase Notes, up to the time of such solicitations or since the date of any agreement by you to purchase Notes as principal and, in the case of your obligation to purchase Notes as principal, up to the settlement date relating to such purchase pursuant to a Terms Agreement or otherwise, there shall not have been any material adverse change or event which would result in a Material Adverse Effect. (f) Since the respective most recent dates as of which information is given (i) in the Registration Statement and Prospectus, as amended or supplemented through the date of this Agreement, including by incorporation by reference therein, and up to the Closing Date, the Company shall not have any material contingent liability, except as reflected in or contemplated by the Registration Statement or Prospectus as so amended or supplemented, (ii) in the Registration Statement and Prospectus as amended or supplemented through the date of any agreement by you to purchase Notes as principal, including by incorporation by reference, and prior to each corresponding settlement date, the Company shall not have any material contingent liability, except as reflected in or contemplated by the Registration Statement or Prospectus as so amended or supplemented. (g) The representations and warranties of the Company in this Agreement shall be true and correct and the Company shall have performed all obligations and satisfied all conditions required of it under this Agreement (i) on the Closing Date and (ii) on any date that the Registration Statement or the Prospectus shall be amended or supplemented (other than by an amendment or supplement providing solely for the specification of the variable terms of the Notes commonly included in a pricing supplement or an amendment or supplement relating solely to an offering of securities other than the Notes), including an amendment effected by the filing of a document that is incorporated by reference into the Registration Statement or Prospectus (other than (A) a Current Report on Form 8-K containing only information responsive to Item 5 or Item 9 thereof and any exhibits relating to such information, (B) the proxy materials of the Company that are distributed in connection with the annual meeting of shareholders and do not contain disclosures pursuant to Items 11, 12, 13, 14, 15 or 16 of Schedule 14A or (C) an amendment to the Company's annual report on Form 10-K filed solely pursuant to General Instruction A to Form 11-K) and (iii) each time, if so indicated in the applicable Terms Agreement or otherwise, the Company sells Notes to you as principal. (h) On the Closing Date and on any applicable date referred to in Section 7(g)(ii) or (iii) hereof, as the case may be, you shall have received a certificate to such effect, signed by the Chairman of the Board, the President or any Vice President of the Company, it being understood that such certificate shall relate to the Registration Statement and Prospectus as amended or supplemented to the date of such certificate. (i) All legal proceedings to be taken in connection with the transactions contemplated by this Agreement shall have been satisfactory to Troutman Sanders LLP. Xn xxxx xny of the conditions specified above in this Section 7 shall not have been fulfilled, this Agreement may be terminated by any of you, as to yourself only, upon mailing or delivering written notice thereof to the Company; provided, however, that it shall not be considered a failure to fulfill the conditions specified in Sections 7(c), 7(d) or 7(h) above if the Company temporarily suspends its obligations under such sections in accordance with Section 7A below. Any termination pursuant to the preceding sentence shall be without liability of the terminating party and the Company to each other, except as otherwise provided in Sections 6(c), 9(e) and 10 hereof.
Appears in 1 contract
Samples: Distribution Agreement (Dominion CNG Capital Trust Ii)
Conditions of Your Obligations. Your obligations as agent of the ------------------------------ Company to initiate solicitations of offers to purchase Notes and to continue such solicitations, as the case may be, and your obligations to purchase Notes as principal pursuant to any Terms under this Agency Agreement or otherwise, shall be are subject to the continuing accuracy of and compliance with the representations and warranties on the part of the Company contained herein, to Partnership and the accuracy of the statements of the Company's officers General Partner made in any certificate furnished pursuant to the provisions Section 2 hereof, to the performance and observance by the Company Partnership and the General Partner of all covenants and agreements contained herein on its part to be performed and observed their obligations under this Agency Agreement and to the following additional conditions:
(a) An order or orders At the Closing, you will have received the favorable opinion of the Commission pursuant Willkie Farr & Gallagher LLP, counsel to the 1935 Act permitting General Partner and the issuance Xxxxxxxxxxx, daxxx xxx Xlosing date and in form and substance satisfactory to you and your counsel, to the effect that:
(i) all action required to be taken by the Partnership and the General Partner before the subscription for and sale of the relevant amount Units to qualified subscribers therefor has been taken or, before the Closing date, will have been taken, and upon (A) payment of Notes shall be the consideration therefor specified in the Subscription Agreement and receipt of all related executed documents, (B) the execution of the Partnership Agreement by the General Partner as attorney-in-fact for each of the Limited Partners, (C) the filing of the Partnership's certificate of limited partnership in the appropriate jurisdictions, and (D) the payment of any required filing fee, the subscribers will become Limited Partners of the Partnership entitled to all the rights of Limited Partners under the Partnership Agreement, and the Units will conform to all statements relating thereto contained in the Memorandum, including the Partnership Agreement attached as an appendix thereto;
(ii) the Partnership (A) is a limited partnership duly and validly organized pursuant to the Partnership Agreement and the laws of New York and (B) is validly existing under and subject to the laws of New York with full force power and effect authority to conduct the business in which it proposes to engage as described in the Memorandum;
(iii) the information contained in the Memorandum (excluding the financial statements as to which such counsel need express no opinion) complies in all material respects with the requirements of Rule 502(b)(2) and shall contain (d)(2) of Reg. D; to the best of such counsel's knowledge, the General Partner has complied with the requirements of Rule 506 under Reg. D and on the basis of its examination and participation in conferences in connection with the preparation of the Memorandum, nothing has come to such counsel's attention that would lead such counsel to believe that, at any time before or at the Closing, the Memorandum (except for the financial statements as to which such counsel need express no provision unacceptable opinion) contained an untrue statement of a material fact or omitted to you state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(iv) the offer and sale of the Units in the manner contemplated by the Memorandum, this Agency Agreement and the Subscription Agreement are exempt from registration under the Securities Act;
(v) under the Partnership Act, so long as he does not take part in the management or control of the business of the Partnership, the liability of each subscriber for Units pursuant to the Partnership Agreement to make payments to the Partnership or on behalf of the Partnership will not exceed his obligation to make contributions to the Partnership, and his share of the Partnership's assets and undistributed profits (subject to his obligation to repay any funds wrongfully returned or distributed to him); and
(vi) to the best of such counsel's knowledge, information and belief, based upon reasonable investigation, there is no action, suit, litigation, or proceeding before or by any court or governmental agency, federal, state or local, pending or threatened against, or affecting or involving the property or business of the General Partner or the Company business of the Partnership, that would materially and adversely affect the condition (but all provisions financial or other), business or prospects of such order the General Partner or orders heretofore entered, copies of which have heretofore been delivered to you, are deemed acceptable to you and the Company, and all provisions of such order or orders hereafter entered shall be deemed acceptable to you and the Company unless within 24 hours after receiving a copy of any such order any party to this Agreement shall give notice to the other parties to the effect that such order contains an unacceptable provision)Partnership.
(b) You shall receive on At the Closing Date the Closing, you will have received a tax opinion of Troutman Sanders Willkie Farr & Gallagher LLP, dated the Closing Date, substantially date and confirming ixx xxxxxxx xet xxxxx xxxer "U.S. Federal Income Tax Considerations" in thx xxxx xttachex hereto as Exhibit B.the Memorandum.
(c) You shall receive (i) on At the Closing Date, (ii) on any date that the Registration Statement or the Prospectus shall be amended or supplemented (other than by an amendment or supplement providing solely for the specification of the variable terms of the Notes commonly included in you will receive a pricing supplement or an amendment or supplement relating solely to an offering of securities other than the Notes), including an amendment effected by the filing of a document that is incorporated by reference into the Registration Statement or Prospectus (other than (A) a Current Report on Form 8-K containing only information responsive to Item 5 or Item 9 thereof and any exhibits relating to such information, (B) the proxy materials of the Company that are distributed in connection with the annual meeting of shareholders and do not contain disclosures pursuant to Items 11, 12, 13, 14, 15 or 16 of Schedule 14A or (C) an amendment to the Company's annual report on Form 10-K filed solely pursuant to General Instruction A to Form 11-K) and (iii) each time, if so indicated in the applicable Terms Agreement or otherwise, the Company sells Notes to you as principal, the legal opinion of McGuireWoods LLP or other counsel satisfactory to you in your reasonable judgmentcertificate, dated the Closing Datedate and signed by the president of the General Partner, the date of such amendment, supplement, incorporation by reference or settlement date, relating to a sale of Notes pursuant to a Terms Agreement or otherwise, as the case may be, substantially in the form attached hereto as Exhibit C. In lieu of such opinion to be delivered upon such amendment, supplement, incorporation by reference or settlement date relating to a sale of Notes under a Terms Agreement or otherwise, each counsel last furnishing such an opinion to you shall furnish you with a letter to the effect that you may rely upon such last opinion to the same extent as though it were dated the date of such letter authorizing reliance (except that statements in such last opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such letter authorizing reliance).
(d) You shall receive (i) on the Closing Datethere has not been, (ii) on any date that the Registration Statement or the Prospectus shall be amended or supplemented to include additional financial information (other than by an amendment or supplement relating solely to the issuance and/or offering of securities other than the Notes), including an amendment effected by the filing of a document that is incorporated by reference into the Registration Statement or Prospectus (other than (A) a Current Report on Form 8-K containing only information responsive to Item 5 or Item 9 thereof and any exhibits relating to such information or (B) the proxy materials of the Company that do not contain disclosures pursuant to Items 11, 12, 13, 14, 15 or 16 of Schedule 14A) and (iii) each time, if so indicated in the applicable Terms Agreement or otherwise, the Company sells Notes to you as principal, from Deloitte & Touche LLP, or another independent public accounting firm satisfactory to you, a letter addressed to you, dated the Closing Date, the date of such amendment, supplement, incorporation or settlement date relating to a sale pursuant to a Terms Agreement or otherwise, as the case may be, containing statements and information of the type ordinarily included in accountants' SAS 72 "comfort letters" to underwriters with respect to financial statements and certain financial information contained or incorporated by reference into the Prospectus, including any pro forma financial information.
(e) Since the date of the most recent audited or unaudited financial statements included in or incorporated by reference in the Registration Statement and Prospectus, and, in the case of your obligation to solicit offers to purchase Notes, up to the time of such solicitations or since the date of any agreement by you to purchase Notes as principal and, in the case of your obligation to purchase Notes as principal, up to the settlement date relating to such purchase pursuant to a Terms Agreement or otherwise, there shall not have been any material adverse change or event which would result in a Material Adverse Effect.
(f) Since the respective most recent dates as of which information is given (i) in the Registration Statement and ProspectusMemorandum, as amended or supplemented through the date of this Agreement, including by incorporation by reference therein, and up to the Closing Date, the Company shall not have any material contingent liabilityadverse change in the condition of the General Partner, except as reflected financial or other, whether or not arising in or contemplated by the Registration Statement or Prospectus as so amended or supplementedordinary course of business, (ii) the other representations and warranties made by the General Partner contained in Section 2 hereof are true and correct with the Registration Statement same force and Prospectus effect as amended though expressly made at and as of the Closing, (iii) the General Partner has performed and complied in all material respects with all agreements, covenants and conditions required to be performed and complied with by it before or supplemented through at such Closing, and (iv) neither the date General Partner nor any of its affiliates or agents has, directly or indirectly, paid or awarded any agreement by you commission or other compensation to any person engaged to render advice to a potential subscriber for Units as an inducement to him to advise the subscriber to purchase Notes as principal, including by incorporation by reference, and prior to each corresponding settlement date, the Company shall not have any material contingent liability, except as reflected in or contemplated by the Registration Statement or Prospectus as so amended or supplementedUnits.
(gd) The representations and warranties of the Company in this Agreement shall be true and correct and the Company shall have performed all obligations and satisfied all conditions required of it under this Agreement (i) on the Closing Date and (ii) on If any date that the Registration Statement or the Prospectus shall be amended or supplemented (other than by an amendment or supplement providing solely for the specification of the variable terms of the Notes commonly included in a pricing supplement or an amendment or supplement relating solely to an offering of securities other than the Notes), including an amendment effected by the filing of a document that is incorporated by reference into the Registration Statement or Prospectus (other than (A) a Current Report on Form 8-K containing only information responsive to Item 5 or Item 9 thereof and any exhibits relating to such information, (B) the proxy materials of the Company that are distributed in connection with the annual meeting of shareholders and do not contain disclosures pursuant to Items 11, 12, 13, 14, 15 or 16 of Schedule 14A or (C) an amendment to the Company's annual report on Form 10-K filed solely pursuant to General Instruction A to Form 11-K) and (iii) each time, if so indicated in the applicable Terms Agreement or otherwise, the Company sells Notes to you as principal.
(h) On the Closing Date and on any applicable date referred to in Section 7(g)(ii) or (iii) hereof, as the case may be, you shall have received a certificate to such effect, signed by the Chairman of the Board, the President or any Vice President of the Company, it being understood that such certificate shall relate to the Registration Statement and Prospectus as amended or supplemented to the date of such certificate.
(i) All legal proceedings to be taken in connection with the transactions contemplated by this Agreement shall have been satisfactory to Troutman Sanders LLP. Xn xxxx xny of the conditions specified above in this Section 7 shall have not have been fulfilled when and as required by this Agency Agreement to be fulfilled, you may cancel this Agency Agreement may be terminated by any of you, as to yourself only, upon mailing or delivering written notice thereof to the Company; provided, however, that it shall not be considered a failure to fulfill the conditions specified in Sections 7(c), 7(d) or 7(h) above if the Company temporarily suspends its and all your obligations under it by notifying the General Partner of such sections cancellation in accordance with Section 7A below. Any termination pursuant to the preceding sentence shall writing or by telegram at any time at or before any Closing and any such cancellation will be without liability or obligation of the terminating any party and the Company to each other, any other party except as otherwise provided in Sections 6(c)Section 5, 9(e) Section 6 and 10 Section 9 hereof.
Appears in 1 contract
Samples: Agency Agreement (Citigroup Fairfield Futures Fund Lp Ii)
Conditions of Your Obligations. Your obligations as agent of the ------------------------------ Company to initiate solicitations of offers to purchase Notes and to continue such solicitations, as the case may be, and your obligations to purchase Notes as principal pursuant to any Terms under this Agency Agreement or otherwise, shall be are subject to the continuing accuracy of and compliance with the representations and warranties on the part of the Company contained herein, to Partnership and the accuracy of the statements of the Company's officers General Partner made in any certificate furnished pursuant to the provisions Section 2 hereof, to the performance and observance by the Company Partnership and the General Partner of all covenants and agreements contained herein on its part to be performed and observed their obligations under this Agency Agreement and to the following additional conditions:
(a) An order or orders At the Closing, you will have received the favorable opinion of Willkie Farr & Gallagher, counsex xx xxx Xxxerax Xxxxxxx and the Commission pursuant Partnership, dated the Closing date and in form and substance satisfactory to you and your counsel, to the 1935 Act permitting effect that:
(i) all action required to be taken by the issuance Partnership and the General Partner before the subscription for and sale of the relevant amount Units to qualified subscribers therefor has been taken or, before the Closing date, will have been taken, and upon (A) payment of Notes shall be the consideration therefor specified in the Subscription Agreement and receipt of all related executed documents, (B) the execution of the Partnership Agreement by the General Partner as attorney-in-fact for each of the Limited Partners, (C) the filing of the Partnership's certificate of limited partnership in the appropriate jurisdictions, and (D) the payment of any required filing fee, the subscribers will become Limited Partners of the Partnership entitled to all the rights of Limited Partners under the Partnership Agreement, and the Units will conform to all statements relating thereto contained in the Memorandum, including the Partnership Agreement attached as an appendix thereto;
(ii) the Partnership (A) is a limited partnership duly and validly organized pursuant to the Partnership Agreement and the laws of New York and (B) is validly existing under and subject to the laws of New York with full force power and effect authority to conduct the business in which it proposes to engage as described in the Memorandum;
(iii) the information contained in the Memorandum (excluding the financial statements as to which such counsel need express no opinion) complies in all material respects with the requirements of Rule 502(b)(2) and shall contain (d)(2) of Reg. D; to the best of such counsel's knowledge, the General Partner has complied with the requirements of Rule 506 under Reg. D and on the basis of its examination and participation in conferences in connection with the preparation of the Memorandum, nothing has come to such counsel's attention that would lead such counsel to believe that, at any time before or at the Closing, the Memorandum (except for the financial statements as to which such counsel need express no provision unacceptable opinion) contained an untrue statement of a material fact or omitted to you state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(iv) the offer and sale of the Units in the manner contemplated by the Memorandum, this Agency Agreement and the Subscription Agreement are exempt from registration under the Securities Act;
(v) under the Partnership Act, so long as he does not take part in the management or control of the business of the Partnership, the liability of each subscriber for Units pursuant to the Partnership Agreement to make payments to the Partnership or on behalf of the Partnership will not exceed his obligation to make contributions to the Partnership, and his share of the Partnership's assets and undistributed profits (subject to his obligation to repay any funds wrongfully returned or distributed to him); and
(vi) to the best of such counsel's knowledge, information and belief, based upon reasonable investigation, there is no action, suit, litigation, or proceeding before or by any court or governmental agency, federal, state or local, pending or threatened against, or affecting or involving the property or business of the General Partner or the Company business of the Partnership, that would materially and adversely affect the condition (but all provisions financial or other), business or prospects of such order the General Partner or orders heretofore entered, copies of which have heretofore been delivered to you, are deemed acceptable to you and the Company, and all provisions of such order or orders hereafter entered shall be deemed acceptable to you and the Company unless within 24 hours after receiving a copy of any such order any party to this Agreement shall give notice to the other parties to the effect that such order contains an unacceptable provision)Partnership.
(b) You shall receive on At the Closing, you will have received a tax opinion of Willkie Farr & Gallagher, dated xxx Xxxxxxx dxxx xxx confirming its opinion set forth under "Federal Income Tax Aspects" in the Memorandum.
(c) At the Closing Date the opinion of Troutman Sanders LLPyou will receive a certificate, dated the Closing Date, substantially in thx xxxx xttachex hereto as Exhibit B.
(c) You shall receive (i) on date and signed by the Closing Date, (ii) on any date that the Registration Statement or the Prospectus shall be amended or supplemented (other than by an amendment or supplement providing solely for the specification president of the variable terms of the Notes commonly included in a pricing supplement or an amendment or supplement relating solely to an offering of securities other than the Notes)General Partner, including an amendment effected by the filing of a document that is incorporated by reference into the Registration Statement or Prospectus (other than (A) a Current Report on Form 8-K containing only information responsive to Item 5 or Item 9 thereof and any exhibits relating to such information, (B) the proxy materials of the Company that are distributed in connection with the annual meeting of shareholders and do not contain disclosures pursuant to Items 11, 12, 13, 14, 15 or 16 of Schedule 14A or (C) an amendment to the Company's annual report on Form 10-K filed solely pursuant to General Instruction A to Form 11-K) and (iii) each time, if so indicated in the applicable Terms Agreement or otherwise, the Company sells Notes to you as principal, the legal opinion of McGuireWoods LLP or other counsel satisfactory to you in your reasonable judgment, dated the Closing Date, the date of such amendment, supplement, incorporation by reference or settlement date, relating to a sale of Notes pursuant to a Terms Agreement or otherwise, as the case may be, substantially in the form attached hereto as Exhibit C. In lieu of such opinion to be delivered upon such amendment, supplement, incorporation by reference or settlement date relating to a sale of Notes under a Terms Agreement or otherwise, each counsel last furnishing such an opinion to you shall furnish you with a letter to the effect that you may rely upon such last opinion to the same extent as though it were dated the date of such letter authorizing reliance (except that statements in such last opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such letter authorizing reliance).
(d) You shall receive (i) on the Closing Datethere has not been, (ii) on any date that the Registration Statement or the Prospectus shall be amended or supplemented to include additional financial information (other than by an amendment or supplement relating solely to the issuance and/or offering of securities other than the Notes), including an amendment effected by the filing of a document that is incorporated by reference into the Registration Statement or Prospectus (other than (A) a Current Report on Form 8-K containing only information responsive to Item 5 or Item 9 thereof and any exhibits relating to such information or (B) the proxy materials of the Company that do not contain disclosures pursuant to Items 11, 12, 13, 14, 15 or 16 of Schedule 14A) and (iii) each time, if so indicated in the applicable Terms Agreement or otherwise, the Company sells Notes to you as principal, from Deloitte & Touche LLP, or another independent public accounting firm satisfactory to you, a letter addressed to you, dated the Closing Date, the date of such amendment, supplement, incorporation or settlement date relating to a sale pursuant to a Terms Agreement or otherwise, as the case may be, containing statements and information of the type ordinarily included in accountants' SAS 72 "comfort letters" to underwriters with respect to financial statements and certain financial information contained or incorporated by reference into the Prospectus, including any pro forma financial information.
(e) Since the date of the most recent audited or unaudited financial statements included in or incorporated by reference in the Registration Statement and Prospectus, and, in the case of your obligation to solicit offers to purchase Notes, up to the time of such solicitations or since the date of any agreement by you to purchase Notes as principal and, in the case of your obligation to purchase Notes as principal, up to the settlement date relating to such purchase pursuant to a Terms Agreement or otherwise, there shall not have been any material adverse change or event which would result in a Material Adverse Effect.
(f) Since the respective most recent dates as of which information is given (i) in the Registration Statement and ProspectusMemorandum, as amended or supplemented through the date of this Agreement, including by incorporation by reference therein, and up to the Closing Date, the Company shall not have any material contingent liabilityadverse change in the condition of the General Partner, except as reflected financial or other, whether or not arising in or contemplated by the Registration Statement or Prospectus as so amended or supplementedordinary course of business, (ii) the other representations and warranties made by the General Partner contained in Section 2 hereof are true and correct with the Registration Statement same force and Prospectus effect as amended though expressly made at and as of the Closing, (iii) the General Partner has performed and complied in all material respects with all agreements, covenants and conditions required to be performed and complied with by it before or supplemented through at such Closing, and (iv) neither the date General Partner nor any of its affiliates or agents has, directly or indirectly, paid or awarded any agreement by you commission or other compensation to any person engaged to render advice to a potential subscriber for Units as an inducement to him to advise the subscriber to purchase Notes as principal, including by incorporation by reference, and prior to each corresponding settlement date, the Company shall not have any material contingent liability, except as reflected in or contemplated by the Registration Statement or Prospectus as so amended or supplementedUnits.
(gd) The representations and warranties of the Company in this Agreement shall be true and correct and the Company shall have performed all obligations and satisfied all conditions required of it under this Agreement (i) on the Closing Date and (ii) on If any date that the Registration Statement or the Prospectus shall be amended or supplemented (other than by an amendment or supplement providing solely for the specification of the variable terms of the Notes commonly included in a pricing supplement or an amendment or supplement relating solely to an offering of securities other than the Notes), including an amendment effected by the filing of a document that is incorporated by reference into the Registration Statement or Prospectus (other than (A) a Current Report on Form 8-K containing only information responsive to Item 5 or Item 9 thereof and any exhibits relating to such information, (B) the proxy materials of the Company that are distributed in connection with the annual meeting of shareholders and do not contain disclosures pursuant to Items 11, 12, 13, 14, 15 or 16 of Schedule 14A or (C) an amendment to the Company's annual report on Form 10-K filed solely pursuant to General Instruction A to Form 11-K) and (iii) each time, if so indicated in the applicable Terms Agreement or otherwise, the Company sells Notes to you as principal.
(h) On the Closing Date and on any applicable date referred to in Section 7(g)(ii) or (iii) hereof, as the case may be, you shall have received a certificate to such effect, signed by the Chairman of the Board, the President or any Vice President of the Company, it being understood that such certificate shall relate to the Registration Statement and Prospectus as amended or supplemented to the date of such certificate.
(i) All legal proceedings to be taken in connection with the transactions contemplated by this Agreement shall have been satisfactory to Troutman Sanders LLP. Xn xxxx xny of the conditions specified above in this Section 7 shall have not have been fulfilled when and as required by this Agency Agreement to be fulfilled, you may cancel this Agency Agreement may be terminated by any of you, as to yourself only, upon mailing or delivering written notice thereof to the Company; provided, however, that it shall not be considered a failure to fulfill the conditions specified in Sections 7(c), 7(d) or 7(h) above if the Company temporarily suspends its and all your obligations under it by notifying the General Partner of such sections cancellation in accordance with Section 7A below. Any termination pursuant to the preceding sentence shall writing or by telegram at any time at or before any Closing and any such cancellation will be without liability or obligation of the terminating any party and the Company to each other, any other party except as otherwise provided in Sections 6(c)Section 5, 9(e) Section 6 and 10 Section 9 hereof.
Appears in 1 contract
Samples: Agency Agreement (Salomon Smith Barney Fairfield Futures Fund L P)
Conditions of Your Obligations. Your obligations as agent of the ------------------------------ Company to initiate solicitations of offers to purchase Notes and to continue such solicitations, as the case may be, and your obligations to purchase Notes as principal pursuant to any Terms under this Agency Agreement or otherwise, shall be are subject to the continuing accuracy of and compliance with the representations and warranties on the part of the Company contained hereinPartnership, to the accuracy of General Partner and the statements of the Company's officers Advisor made in any certificate furnished pursuant to the provisions Section 2 hereof, to the performance and observance by the Company Partnership and the General Partner of all covenants and agreements contained herein on its part to be performed and observed their obligations under this Agency Agreement and to the following additional conditions:
(a) An order or orders At the Closing, you will have received the favorable opinion of the Commission pursuant Xxxxxxx Xxxx & Xxxxxxxxx, counsel to the 1935 Act permitting General Partner, dated the issuance Closing date and in form and substance satisfactory to you and your counsel, to the effect that:
(i) all action required to be taken by the Partnership and the General Partner before the subscription for and sale of the relevant amount Units to qualified subscribers therefor has been taken or, before the Closing date, will have been taken, and upon (A) payment of Notes shall be the consideration therefor specified in the Subscription Agreement and receipt of all related executed documents, (B) the execution of the Partnership Agreement by the General Partner as attorney-in-fact for each of the Limited Partners, (C) the filing of the Certificate in the appropriate jurisdictions, and (D) the payment of any required filing fee, the subscribers will become Limited Partners of the Partnership entitled to all the rights of Limited Partners under the Partnership Agreement, and the Units will conform to all statements relating thereto contained in the Memorandum, including the Partnership Agreement attached as an appendix thereto;
(ii) the Partnership (A) is a limited partnership duly and validly organized pursuant to the Partnership Agreement and the laws of New York and (B) is validly existing under and subject to the laws of New York with full force power and effect authority to conduct the business in which it proposes to engage as described in the Memorandum;
(iii) the information contained in the Memorandum (excluding the financial statements as to which such counsel need express no opinion) complies in all material respects with the requirements of Rule 502(b)(2) and shall contain (d)(2) of Reg. D; to the best of such counsel’s knowledge, the General Partner has complied with the requirements of Rule 506 under Reg. D and on the basis of its examination and participation in conferences in connection with the preparation of the Memorandum, nothing has come to such counsel’s attention that would lead such counsel to believe that, at any time before or at the Closing, the Memorandum (except for the financial statements as to which such counsel need express no provision unacceptable opinion) contained an untrue statement of a material fact or omitted to you state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(iv) the offer and sale of the Units in the manner contemplated by the Memorandum, this Agency Agreement and the Subscription Agreements are exempt from registration under the Securities Act;
(v) under the Partnership Act, so long as he does not take part in the management or control of the business of the Partnership, the liability of each subscriber for Units pursuant to the Partnership Agreement to make payments to the Partnership or on behalf of the Partnership will not exceed his obligation to make contributions to the Partnership, and his share of the Partnership’s assets and undistributed profits (subject to his obligation to repay any funds wrongfully returned or distributed to him); and
(vi) to the best of such counsel’s knowledge, information and belief, based upon reasonable investigation, there is no action, suit, litigation, or proceeding before or by any court or governmental agency, federal, state or local, pending or threatened against, or affecting or involving the property or business of the General Partner or the Company business of the Partnership, that would materially and adversely affect the condition (but all provisions financial or other), business or prospects of such order the General Partner or orders heretofore entered, copies of which have heretofore been delivered to you, are deemed acceptable to you and the Company, and all provisions of such order or orders hereafter entered shall be deemed acceptable to you and the Company unless within 24 hours after receiving a copy of any such order any party to this Agreement shall give notice to the other parties to the effect that such order contains an unacceptable provision)Partnership.
(b) You shall receive on At the Closing Date the Closing, you will have received a tax opinion of Troutman Sanders LLPXxxxxxx Xxxx & Xxxxxxxxx, dated the Closing Date, substantially date and confirming its opinion set forth under “Income Tax Aspects” in thx xxxx xttachex hereto as Exhibit B.the Memorandum.
(c) You shall receive (i) on At the Closing Date, (ii) on any date that the Registration Statement or the Prospectus shall be amended or supplemented (other than by an amendment or supplement providing solely for the specification of the variable terms of the Notes commonly included in you will receive a pricing supplement or an amendment or supplement relating solely to an offering of securities other than the Notes), including an amendment effected by the filing of a document that is incorporated by reference into the Registration Statement or Prospectus (other than (A) a Current Report on Form 8-K containing only information responsive to Item 5 or Item 9 thereof and any exhibits relating to such information, (B) the proxy materials of the Company that are distributed in connection with the annual meeting of shareholders and do not contain disclosures pursuant to Items 11, 12, 13, 14, 15 or 16 of Schedule 14A or (C) an amendment to the Company's annual report on Form 10-K filed solely pursuant to General Instruction A to Form 11-K) and (iii) each time, if so indicated in the applicable Terms Agreement or otherwise, the Company sells Notes to you as principal, the legal opinion of McGuireWoods LLP or other counsel satisfactory to you in your reasonable judgmentcertificate, dated the Closing Datedate and signed by the president of the General Partner, the date of such amendment, supplement, incorporation by reference or settlement date, relating to a sale of Notes pursuant to a Terms Agreement or otherwise, as the case may be, substantially in the form attached hereto as Exhibit C. In lieu of such opinion to be delivered upon such amendment, supplement, incorporation by reference or settlement date relating to a sale of Notes under a Terms Agreement or otherwise, each counsel last furnishing such an opinion to you shall furnish you with a letter to the effect that you may rely upon such last opinion to the same extent as though it were dated the date of such letter authorizing reliance (except that statements in such last opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such letter authorizing reliance).
(d) You shall receive (i) on the Closing Datethere has not been, (ii) on any date that the Registration Statement or the Prospectus shall be amended or supplemented to include additional financial information (other than by an amendment or supplement relating solely to the issuance and/or offering of securities other than the Notes), including an amendment effected by the filing of a document that is incorporated by reference into the Registration Statement or Prospectus (other than (A) a Current Report on Form 8-K containing only information responsive to Item 5 or Item 9 thereof and any exhibits relating to such information or (B) the proxy materials of the Company that do not contain disclosures pursuant to Items 11, 12, 13, 14, 15 or 16 of Schedule 14A) and (iii) each time, if so indicated in the applicable Terms Agreement or otherwise, the Company sells Notes to you as principal, from Deloitte & Touche LLP, or another independent public accounting firm satisfactory to you, a letter addressed to you, dated the Closing Date, the date of such amendment, supplement, incorporation or settlement date relating to a sale pursuant to a Terms Agreement or otherwise, as the case may be, containing statements and information of the type ordinarily included in accountants' SAS 72 "comfort letters" to underwriters with respect to financial statements and certain financial information contained or incorporated by reference into the Prospectus, including any pro forma financial information.
(e) Since the date of the most recent audited or unaudited financial statements included in or incorporated by reference in the Registration Statement and Prospectus, and, in the case of your obligation to solicit offers to purchase Notes, up to the time of such solicitations or since the date of any agreement by you to purchase Notes as principal and, in the case of your obligation to purchase Notes as principal, up to the settlement date relating to such purchase pursuant to a Terms Agreement or otherwise, there shall not have been any material adverse change or event which would result in a Material Adverse Effect.
(f) Since the respective most recent dates as of which information is given (i) in the Registration Statement and ProspectusMemorandum, as amended or supplemented through the date of this Agreement, including by incorporation by reference therein, and up to the Closing Date, the Company shall not have any material contingent liabilityadverse change in the condition of the General Partner, except as reflected financial or other, whether or not arising in or contemplated by the Registration Statement or Prospectus as so amended or supplementedordinary course of business, (ii) the other representations and warranties contained in Section 2 hereof are true and correct with the Registration Statement same force and Prospectus effect as amended though expressly made at and as of the Closing, (iii) the General Partner has performed and complied in all material respects with all agreements, covenants and conditions required to be performed and complied with by it before or supplemented through at such Closing, and (iv) neither the date General Partner nor any of its affiliates or agents has, directly or indirectly, paid or awarded any agreement by you commission or other compensation to any person engaged to render advice to a potential subscriber for Units as an inducement to him to advise the subscriber to purchase Notes as principal, including by incorporation by reference, and prior to each corresponding settlement date, the Company shall not have any material contingent liability, except as reflected in or contemplated by the Registration Statement or Prospectus as so amended or supplementedUnits.
(gd) The representations and warranties of the Company in this Agreement shall be true and correct and the Company shall have performed all obligations and satisfied all conditions required of it under this Agreement (i) on the Closing Date and (ii) on If any date that the Registration Statement or the Prospectus shall be amended or supplemented (other than by an amendment or supplement providing solely for the specification of the variable terms of the Notes commonly included in a pricing supplement or an amendment or supplement relating solely to an offering of securities other than the Notes), including an amendment effected by the filing of a document that is incorporated by reference into the Registration Statement or Prospectus (other than (A) a Current Report on Form 8-K containing only information responsive to Item 5 or Item 9 thereof and any exhibits relating to such information, (B) the proxy materials of the Company that are distributed in connection with the annual meeting of shareholders and do not contain disclosures pursuant to Items 11, 12, 13, 14, 15 or 16 of Schedule 14A or (C) an amendment to the Company's annual report on Form 10-K filed solely pursuant to General Instruction A to Form 11-K) and (iii) each time, if so indicated in the applicable Terms Agreement or otherwise, the Company sells Notes to you as principal.
(h) On the Closing Date and on any applicable date referred to in Section 7(g)(ii) or (iii) hereof, as the case may be, you shall have received a certificate to such effect, signed by the Chairman of the Board, the President or any Vice President of the Company, it being understood that such certificate shall relate to the Registration Statement and Prospectus as amended or supplemented to the date of such certificate.
(i) All legal proceedings to be taken in connection with the transactions contemplated by this Agreement shall have been satisfactory to Troutman Sanders LLP. Xn xxxx xny of the conditions specified above in this Section 7 shall have not have been fulfilled when and as required by this Agency Agreement to be fulfilled, you may cancel this Agency Agreement may be terminated by any of you, as to yourself only, upon mailing or delivering written notice thereof to the Company; provided, however, that it shall not be considered a failure to fulfill the conditions specified in Sections 7(c), 7(d) or 7(h) above if the Company temporarily suspends its and all your obligations under it by notifying the General Partner of such sections cancellation in accordance with Section 7A below. Any termination pursuant to the preceding sentence shall writing or by telegram at any time at or before any Closing and any such cancellation will be without liability or obligation of the terminating any party and the Company to each other, any other party except as otherwise provided in Sections 6(c)Section 5, 9(e) Section 6 and 10 Section 9 hereof.
Appears in 1 contract
Conditions of Your Obligations. Your obligations as agent of the ------------------------------ Company to initiate solicitations of offers to purchase Notes and to continue such solicitations, as the case may be, and your obligations to purchase Notes as principal pursuant to any Terms Agreement or otherwise, shall be subject to the continuing accuracy of the representations and warranties on the part of the Company contained herein, to the accuracy of the statements of the Company's officers made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by the Company of all covenants and agreements contained herein on its part to be performed and observed and to the following additional conditions:
(a) An order or orders of the Commission pursuant to the 1935 Act permitting the issuance and sale of the relevant amount of Notes shall be in full force and effect and shall contain no provision unacceptable to you or the Company (but all provisions of such order or orders heretofore entered, copies of which have heretofore been delivered to you, are deemed acceptable to you and the Company, and all provisions of such order or orders hereafter entered shall be deemed acceptable to you and the Company unless within 24 hours after receiving a copy of any such order any party to this Agreement shall give notice to the other parties to the effect that such order contains an unacceptable provision).
(b) You shall receive on the Closing Date the opinion of Troutman Sanders Xxxxxxxx Xxxxxxx LLP, dated the Closing Date, substantially in thx xxxx xttachex the form attached hereto as Exhibit B.
(c) You shall receive (i) on the Closing Date, (ii) on any date that the Registration Statement or the Prospectus shall be amended or supplemented (other than by an amendment or supplement providing solely for the specification of the variable terms of the Notes commonly included in a pricing supplement or an amendment or supplement relating solely to an offering of securities other than the Notes), including an amendment effected by the filing of a document that is incorporated by reference into the Registration Statement or Prospectus (other than (A) a Current Report on Form 8-K containing only information responsive to Item 5 or Item 9 thereof and any exhibits relating to such information, (B) the proxy materials of the Company that are distributed in connection with the annual meeting of shareholders and do not contain disclosures pursuant to Items 11, 12, 13, 14, 15 or 16 of Schedule 14A or (CB) an amendment to the Company's annual report on Form 10-K filed solely pursuant to General Instruction A to Form 11-K), and with respect to any filings on Form 8-K that are incorporated by reference into the Registration Statement and the Prospectus, compliance with this Section 7(c) shall only be required if the Form 8-K contains information responsive to Items 1, 2, 3 or 4 unless otherwise reasonably requested by the Agents and agreed to by the Company, and (iii) each time, if so indicated in the applicable Terms Agreement or otherwise, the Company sells Notes to you as principal, the legal opinion of McGuireWoods LLP or other counsel satisfactory to you in your reasonable judgment, dated the Closing Date, the date of such amendment, supplement, incorporation by reference or settlement date, relating to a sale of Notes pursuant to a Terms Agreement or otherwise, as the case may be, substantially in the form attached hereto as Exhibit C. In lieu of such opinion to be delivered upon such amendment, supplement, incorporation by reference or settlement date relating to a sale of Notes under a Terms Agreement or otherwise, each counsel last furnishing such an opinion to you shall furnish you with a letter to the effect that you may rely upon such last opinion to the same extent as though it were dated the date of such letter authorizing reliance (except that statements in such last opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such letter authorizing reliance).
(d) You shall receive (i) on the Closing Date, (ii) on any date that the Registration Statement or the Prospectus shall be amended or supplemented to include additional financial information (other than by an amendment or supplement relating solely to the issuance and/or offering of securities other than the Notes), including an amendment effected by the filing of a document that is incorporated by reference into the Registration Statement or Prospectus (other than (A) a Current Report on Form 8-K containing only information responsive to Item 5 or Item 9 thereof and any exhibits relating to such information or (B) the proxy materials of the Company that do not contain disclosures pursuant to Items 11, 12, 13, 14, 15 or 16 of Schedule 14A), and with respect to any filings on Form 8-K that are incorporated by reference in the Registration Statement and the Prospectus, compliance with this Section 7(d) shall only be required if the Form 8-K contains information responsive to Items 1, 2, 3 or 4 unless otherwise reasonably requested by the Agents and agreed to by the Company, and (iii) each time, if so indicated in the applicable Terms Agreement or otherwise, the Company sells Notes to you as principal, from Deloitte & Touche LLP, or another independent public accounting firm satisfactory to you, a letter addressed to you, dated the Closing Date, the date of such amendment, supplement, incorporation or settlement date relating to a sale pursuant to a Terms Agreement or otherwise, as the case may be, containing statements and information of the type ordinarily included in accountants' SAS 72 "comfort letters" to underwriters with respect to financial statements and certain financial information contained or incorporated by reference into the Prospectus, including any pro forma financial information.
(e) Since the date of the most recent audited or unaudited financial statements included in or incorporated by reference in the Registration Statement and Prospectus, and, in the case of your obligation to solicit offers to purchase Notes, up to the time of such solicitations or since the date of any agreement by you to purchase Notes as principal and, in the case of your obligation to purchase Notes as principal, up to the settlement date relating to such purchase pursuant to a Terms Agreement or otherwise, there shall not have been any material adverse change or event which would result in a Material Adverse Effect.
(f) Since the respective most recent dates as of which information is given (i) in the Registration Statement and Prospectus, as amended or supplemented through the date of this Agreement, including by incorporation by reference therein, and up to the Closing Date, the Company shall not have any material contingent liability, except as reflected in or contemplated by the Registration Statement or Prospectus as so amended or supplemented, (ii) in the Registration Statement and Prospectus as amended or supplemented through the date of any agreement by you to purchase Notes as principal, including by incorporation by reference, and prior to each corresponding settlement date, the Company shall not have any material contingent liability, except as reflected in or contemplated by the Registration Statement or Prospectus as so amended or supplemented.
(g) The representations and warranties of the Company in this Agreement shall be true and correct and the Company shall have performed all obligations and satisfied all conditions required of it under this Agreement (i) on the Closing Date and (ii) on any date that the Registration Statement or the Prospectus shall be amended or supplemented (other than by an amendment or supplement providing solely for the specification of the variable terms of the Notes commonly included in a pricing supplement or an amendment or supplement relating solely to an offering of securities other than the Notes), including an amendment effected by the filing of a document that is incorporated by reference into the Registration Statement or Prospectus (other than (A) a Current Report on Form 8-K containing only information responsive to Item 5 or Item 9 thereof and any exhibits relating to such information, (B) the proxy materials of the Company that are distributed in connection with the annual meeting of shareholders and do not contain disclosures pursuant to Items 11, 12, 13, 14, 15 or 16 of Schedule 14A or (CB) an amendment to the Company's annual report on Form 10-K filed solely pursuant to General Instruction A to Form 11-K), and with respect to any filings on Form 8-K that are incorporated by reference into the Registration Statement and the Prospectus, compliance with this Section 7(g) shall only be required if the Form 8-K contains information responsive to Items 1, 2, 3 or 4, unless otherwise reasonably requested by the Agents and agreed to by the Company, and (iii) each time, if so indicated in the applicable Terms Agreement or otherwise, the Company sells Notes to you as principal.
(h) On the Closing Date and on any applicable date referred to in Section 7(g)(ii) or (iii) hereof, as the case may be, you shall have received a certificate to such effectcertificate, signed by the Chairman of the Board, the President or any Vice President of the Company, it being understood that such certificate shall relate to the Registration Statement and Prospectus as amended or supplemented to the date of such certificate.
(i) All legal proceedings to be taken in connection with the transactions contemplated by this Agreement shall have been satisfactory to Troutman Sanders Xxxxxxxx Xxxxxxx LLP. Xn xxxx xny In case any of the conditions specified above in this Section 7 shall not have been fulfilled, this Agreement may be terminated by any of you, as to yourself only, upon mailing or delivering written notice thereof to the Company; provided, however, that it shall not be considered a failure to fulfill the conditions specified in Sections 7(c), 7(d) or 7(h) above if the Company temporarily suspends its obligations under such sections in accordance with Section 7A below. Any termination pursuant to the preceding sentence shall be without liability of the terminating party and the Company to each other, except as otherwise provided in Sections 6(c), 9(e) and 10 hereof.
Appears in 1 contract
Samples: Distribution Agreement (Dominion Resources Inc /Va/)
Conditions of Your Obligations. Your obligations as agent of the ------------------------------ Company to initiate solicitations of offers to purchase Notes and to continue such solicitations, as the case may be, and your obligations to purchase Notes as principal pursuant to any Terms Agreement or otherwise, shall be subject to the continuing accuracy of the representations and warranties on the part of the Company contained herein, to the accuracy of the statements of the Company's officers made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by the Company of all covenants and agreements contained herein on its part to be performed and observed and to the following additional conditions:
(a) An order or orders of the Commission pursuant to the 1935 Act permitting the issuance and sale of the relevant amount of Notes shall be in full force and effect and shall contain no provision unacceptable to you or the Company (but all provisions of such order or orders heretofore entered, copies of which have heretofore been delivered to you, are deemed acceptable to you and the Company, and all provisions of such order or orders hereafter entered shall be deemed acceptable to you and the Company unless within 24 hours after receiving a copy of any such order any party to this Agreement shall give notice to the other parties to the effect that such order contains an unacceptable provision).
(b) You shall receive on the Closing Date the opinion of Troutman Sanders Xxxxxxxx Xxxxxxx LLP, dated the Closing Date, substantially in thx xxxx xttachex the form attached hereto as Exhibit B.
(c) You shall receive (i) on the Closing Date, (ii) on any date that the Registration Statement or the Prospectus shall be amended or supplemented (other than by an amendment or supplement providing solely for the specification of the variable terms of the Notes commonly included in a pricing supplement or an amendment or supplement relating solely to an offering of securities other than the Notes), including an amendment effected by the filing of a document that is incorporated by reference into the Registration Statement or Prospectus (other than (A) a Current Report on Form 8-K containing only information responsive to Item 5 or Item 9 thereof thereof, or Item 10 as proposed or substantially as proposed in Securities Act Release No. 33-8090 (Item 10), and any exhibits relating to such information, (B) the proxy materials of the Company that are distributed in connection with the annual meeting of shareholders and do not contain disclosures pursuant to Items 11, 12, 13, 14, 15 or 16 of Schedule 14A or (C) an amendment to the Company's annual report on Form 10-K filed solely pursuant to General Instruction A to Form 11-K) and (iii) each time, if so indicated in the applicable Terms Agreement or otherwise, the Company sells Notes to you as principal, the legal opinion of McGuireWoods LLP or other counsel satisfactory to you in your reasonable judgment, dated the Closing Date, the date of such amendment, supplement, incorporation by reference or settlement date, relating to a sale of Notes pursuant to a Terms Agreement or otherwise, as the case may be, substantially in the form attached hereto as Exhibit C. In lieu of such opinion to be delivered upon such amendment, supplement, incorporation by reference or settlement date relating to a sale of Notes under a Terms Agreement or otherwise, each counsel last furnishing such an opinion to you shall furnish you with a letter to the effect that you may rely upon such last opinion to the same extent as though it were dated the date of such letter authorizing reliance (except that statements in such last opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such letter authorizing reliance).
(d) You shall receive (i) on the Closing Date, (ii) on any date that the Registration Statement or the Prospectus shall be amended or supplemented to include additional financial information (other than by an amendment or supplement relating solely to the issuance and/or offering of securities other than the Notes), including an amendment effected by the filing of a document that is incorporated by reference into the Registration Statement or Prospectus (other than (A) a Current Report on Form 8-K containing only information responsive to Item 5 5, Item 9 or Item 9 10, thereof and any exhibits relating to such information or (B) the proxy materials of the Company that do not contain disclosures pursuant to Items 11, 12, 13, 14, 15 or 16 of Schedule 14A) and (iii) each time, if so indicated in the applicable Terms Agreement or otherwise, the Company sells Notes to you as principal, from Deloitte & Touche LLP, or another independent public accounting firm satisfactory to you, a letter addressed to you, dated the Closing Date, the date of such amendment, supplement, incorporation or settlement date relating to a sale pursuant to a Terms Agreement or otherwise, as the case may be, containing statements and information of the type ordinarily included in accountants' SAS 72 "comfort letters" to underwriters with respect to financial statements and certain financial information contained or incorporated by reference into the Prospectus, including any pro forma financial information.
(e) Since the date of the most recent audited or unaudited financial statements included in or incorporated by reference in the Registration Statement and Prospectus, and, in the case of your obligation to solicit offers to purchase Notes, up to the time of such solicitations or since the date of any agreement by you to purchase Notes as principal and, in the case of your obligation to purchase Notes as principal, up to the settlement date relating to such purchase pursuant to a Terms Agreement or otherwise, there shall not have been any material adverse change or event which would result in a Material Adverse Effect.
(f) Since the respective most recent dates as of which information is given (i) in the Registration Statement and Prospectus, as amended or supplemented through the date of this Agreement, including by incorporation by reference therein, and up to the Closing Date, the Company shall not have any material contingent liability, except as reflected in or contemplated by the Registration Statement or Prospectus as so amended or supplemented, (ii) in the Registration Statement and Prospectus as amended or supplemented through the date of any agreement by you to purchase Notes as principal, including by incorporation by reference, and prior to each corresponding settlement date, the Company shall not have any material contingent liability, except as reflected in or contemplated by the Registration Statement or Prospectus as so amended or supplemented.
(g) The representations and warranties of the Company in this Agreement shall be true and correct and the Company shall have performed all obligations and satisfied all conditions required of it under this Agreement (i) on the Closing Date and (ii) on any date that the Registration Statement or the Prospectus shall be amended or supplemented (other than by an amendment or supplement providing solely for the specification of the variable terms of the Notes commonly included in a pricing supplement or an amendment or supplement relating solely to an offering of securities other than the Notes), including an amendment effected by the filing of a document that is incorporated by reference into the Registration Statement or Prospectus (other than (A) a Current Report on Form 8-K containing only information responsive to Item 5 5, Item 9, or Item 9 10 thereof and any exhibits relating to such information, (B) the proxy materials of the Company that are distributed in connection with the annual meeting of shareholders and do not contain disclosures pursuant to Items 11, 12, 13, 14, 15 or 16 of Schedule 14A or (C) an amendment to the Company's annual report on Form 10-K filed solely pursuant to General Instruction A to Form 11-K) and (iii) each time, if so indicated in the applicable Terms Agreement or otherwise, the Company sells Notes to you as principal.
(h) On the Closing Date and on any applicable date referred to in Section 7(g)(ii) or (iii) hereof, as the case may be, you shall have received a certificate to such effectcertificate, signed by the Chairman of the Board, the President or any Vice President of the Company, it being understood that such certificate shall relate to the Registration Statement and Prospectus as amended or supplemented to the date of such certificate.
(i) All legal proceedings to be taken in connection with the transactions contemplated by this Agreement shall have been satisfactory to Troutman Sanders Xxxxxxxx Xxxxxxx LLP. Xn xxxx xny In case any of the conditions specified above in this Section 7 shall not have been fulfilled, this Agreement may be terminated by any of you, as to yourself only, upon mailing or delivering written notice thereof to the Company; provided, however, that it shall not be considered a failure to fulfill the conditions specified in Sections 7(c), 7(d) or 7(h) above if the Company temporarily suspends its obligations under such sections in accordance with Section 7A below. Any termination pursuant to the preceding sentence shall be without liability of the terminating party and the Company to each other, except as otherwise provided in Sections 6(c), 9(e) and 10 hereof.
Appears in 1 contract
Samples: Distribution Agreement (Dominion Resources Capital Trust Iv)
Conditions of Your Obligations. Your obligations as agent of the ------------------------------ Company to initiate solicitations of offers to purchase the Notes and to continue such solicitations, as the case may be, and your obligations to purchase Notes as principal pursuant to any Terms Agreement or otherwise, shall be subject to the continuing solicitations, as the case may be, and your obligations to purchase Notes as principal pursuant to any Terms Agreement or otherwise, shall be subject to the continuing accuracy of the representations and warranties on the part of the Company contained herein, to the accuracy of the statements of the Company's officers made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by the Company of all covenants and agreements contained herein on its part to be performed and observed and to the following additional conditions:
(a) An order or orders of the Virginia Commission pursuant to the 1935 Act permitting the issuance and sale of the relevant amount of Notes substantially in accordance with the terms and conditions hereof shall be in full force and effect and shall contain no provision unacceptable to you or the Company (but all provisions of such order or orders heretofore entered, copies of which have heretofore been delivered to you, are deemed acceptable to you and the Company, and all provisions of such order or orders hereafter entered shall be deemed acceptable to you and the Company unless within 24 hours after receiving a copy of any such order any party to this Agreement shall give notice to the other parties to the effect that such order contains an unacceptable provision).
(b) You shall receive on the Closing Date the opinion of Troutman Sanders LLPXxxx & Valentine, L.L.P., dated the Closing Date, substantially in thx xxxx xttachex the form attached hereto as Exhibit B.C.
(c) You shall receive (i) on the Closing Date, (ii) on any date that the Registration Statement or the Prospectus shall be amended or supplemented (other than by an amendment or supplement providing solely for the specification of the variable terms of the Notes commonly included in a pricing supplement or an amendment or supplement relating solely to an offering of securities other than a change in the Specified Currency or in the interest rate offered on the Notes), including an amendment effected by the filing of (iii) each time a document that filed under the Securities Act or the Securities Exchange Act is incorporated by reference into the Registration Statement or Prospectus (other than (A) a Current Report Reports on Form 8-K containing only information responsive filed exclusively to incorporate exhibits, required to be filed as Exhibits 1, 4 and 12 under Item 5 or Item 9 thereof and any exhibits relating to such information, (B) the proxy materials 601 of Regulation S-K of the Company that are distributed Securities Exchange Act, in connection with the annual meeting of shareholders and do not contain disclosures pursuant to Items 11, 12, 13, 14, 15 or 16 of Schedule 14A or (C) an amendment to the Company's annual report registration statements on Form 10-K filed solely pursuant to General Instruction A to Form 11-K) S-3), and (iiiiv) each time, if so indicated in the applicable Terms Agreement or otherwise, the Company sells Notes to you as principal, the legal opinion of McGuireWoods McGuire, Woods, Battle & Xxxxxx LLP or other counsel satisfactory to you in your reasonable judgment, dated the Closing Date, the date of such amendment, supplement, incorporation by reference or settlement date, relating to a sale of Notes pursuant to a Terms Agreement or otherwise, as the case may be, substantially in the form attached hereto as Exhibit C. D. In lieu of such opinion to be delivered upon such amendment, supplement, incorporation by reference or settlement date relating to a sale of Notes under a Terms Agreement or otherwise, each counsel last furnishing such an opinion to you shall furnish you with a letter to the effect that you may rely upon such last opinion to the same extent as though it were dated the date of such letter authorizing reliance (except that statements in such last opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such letter authorizing reliance).
(d) You shall receive (i) on the Closing Date, (ii) on any date each time that the Registration Statement or the Prospectus shall be amended or supplemented to include additional financial information (other than by an amendment or supplement relating solely to a change in the issuance and/or offering of securities other than Specified Currency or in the interest rate offered on the Notes), including an amendment effected by the filing of ) and each time a document that filed under the Securities Act or the Securities Exchange Act is incorporated by reference into in the Registration Statement or Prospectus (other than (A) a Current Report Reports on Form 8-K containing only information responsive filed exclusively to incorporate exhibits, required to be filed as Exhibits 1, 4 and 12 of Item 5 or Item 9 thereof and any exhibits relating to such information or (B) the proxy materials 601 under Regulation S-K of the Company that do not contain disclosures pursuant Securities Exchange Act, in registration statements on Form S- 3), in the case of each such amendment, supplement or incorporation by reference to Items 11set forth financial information included in or derived from the Company's financial statements, 12, 13, 14, 15 or 16 of Schedule 14A) and (iii) each time, if so indicated in the applicable Terms Agreement or otherwise, the Company sells Notes to you as principal, from Deloitte & Touche LLP, or another independent public accounting firm satisfactory to you, a letter addressed to you, dated the Closing Date, the date of such amendment, supplement, incorporation or settlement date relating to a sale pursuant to a Terms Agreement or otherwise, as the case may be: (1) confirming that they are independent public accountants as required by the Securities Act; (2) stating in effect that, containing in their opinion, the financial statements and information of the type ordinarily included in accountants' SAS 72 "comfort letters" to underwriters with respect to financial statements and certain financial information contained or incorporated by reference into in the ProspectusRegistration Statement and the Prospectus and examined by them as stated in their report incorporated by reference in the Registration Statement, comply as to form in all material respects with the applicable accounting requirements adopted pursuant to the Securities Exchange Act; (3) stating, in effect, that on the basis of a reading of the minutes of the meetings of the Board of Directors of the Company and of committees of the Board since the end of the most recent fiscal year with respect to which an audit report has been issued and inquiries of officials of the Company responsible for financial and accounting matters (which procedures did not constitute an audit conducted in accordance with generally accepted auditing standards) nothing came to their attention that caused them to believe that the most recent unaudited financial statements included in or incorporated by reference in the Registration Statement and the Prospectus are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by reference therein; and (4) stating, in effect, that on the basis of more limited procedures than those set forth in the foregoing clause (3), consisting merely of the reading of the minutes referred to in such clause and inquiries of officials of the Company responsible for financial and accounting matters, nothing came to their attention at a date not more than five business days prior to the date of such letter that caused them to believe that (i) at such date there was any decrease in the common stockholders equity or any increase in long-term debt (including amounts classified as due within one year, but excluding unamortized discount (net of premium)) of the Company or any pro forma decrease in net assets as compared with the amounts shown in the most recent audited balance sheet incorporated by reference in the Registration Statement, or (ii) for the period from the date of the most recent unaudited financial statements included in or incorporated by reference in the Registration Statement and the Prospectus to a date not more than five business days prior to the date of such letter there were any decreases, as compared with the corresponding period in the preceding year, in the operating revenues, in operating income, or net income except (with respect to (i) or (ii)) in all instances for changes or decreases which the Registration Statement discloses have occurred or may occur; provided, however, that such letters may vary from the requirements specified in clause (4) hereof in such manner as you in your sole discretion may deem to be acceptable. Such letters shall also state that the unaudited dollar amounts, percentages and other financial information (in each case to the extent that such dollar amounts, percentages and other financial information, either directly or by analysis or computation, are derived from the general accounting records of the Company) which appear (i) in the Prospectus under the caption Ratio of Earnings to Fixed Charges, or (ii) in the Company's most recent Annual Report on Form 10-K under the caption "Selected Financial Data" have been compared with the general accounting records of the Company and such dollar amounts, percentages and financial information have been found to be in agreement with the accounting records of the Company and the computations have been found to be arithmetically correct. Each such letter shall relate to the Registration Statement and Prospectus as amended or supplemented to the date of each such letter.
(e) Since the date of the most recent audited or unaudited financial statements included in or incorporated by reference in the Registration Statement and Prospectus, and, and up to (in the case of your obligation to solicit offers to purchase Notes, up to ) the time of such solicitations or since the date of any agreement by you to purchase Notes as principal and, and up to (in the case of your obligation to purchase Notes as principal, up to ) the settlement date relating to such purchase pursuant to a Terms Agreement or otherwise, there shall not have been any material adverse change in the condition of the Company, financial or event which would result in a Material Adverse Effectotherwise.
(f) Since the respective most recent dates as of which information is given (i) in the Registration Statement and Prospectus, as amended or supplemented through the date of this Agreement, including by incorporation by reference therein, and up to the Closing Date, the Company shall not have any material contingent liability, except as reflected in or contemplated by the Registration Statement or Prospectus as so amended or supplemented, (ii) in the Registration Statement and Prospectus as amended or supplemented through the date of any agreement by you to purchase Notes as principal, including by incorporation by reference, and prior to each corresponding settlement date, the Company shall not have any material contingent liability, except as reflected in or contemplated by the Registration Statement or Prospectus as so amended or supplemented.
(g) The On the Closing Date or any applicable date referred to in paragraph 7(c) hereof, as the case may be, the representations and warranties of the Company in this Agreement shall be true and correct correct, and the Company shall have performed all obligations and satisfied all conditions required of it under this Agreement (i) on the Closing Date and (ii) on any date that the Registration Statement or the Prospectus shall be amended or supplemented (other than by an amendment or supplement providing solely for the specification of the variable terms of the Notes commonly included in a pricing supplement or an amendment or supplement relating solely to an offering of securities other than the Notes), including an amendment effected by the filing of a document that is incorporated by reference into the Registration Statement or Prospectus (other than (A) a Current Report on Form 8-K containing only information responsive to Item 5 or Item 9 thereof and any exhibits relating to such information, (B) the proxy materials of the Company that are distributed in connection with the annual meeting of shareholders and do not contain disclosures pursuant to Items 11, 12, 13, 14, 15 or 16 of Schedule 14A or (C) an amendment to the Company's annual report on Form 10-K filed solely pursuant to General Instruction A to Form 11-K) and (iii) each time, if so indicated in the applicable Terms Agreement or otherwise, the Company sells Notes to you as principalAgreement.
(h) On At the Closing Date and on or any applicable date referred to in Section 7(g)(ii) or (iiiparagraph 7(c) hereof, as the case may be, you shall have received a certificate to such effect, signed by the Chairman of the Board, the President or any Vice President of the Company, it being understood that such certificate shall relate to the Registration Statement and Prospectus as amended or supplemented to the date of such certificate.
(i) All legal proceedings to be taken in connection with the transactions contemplated by this Agreement shall have been satisfactory to Troutman Sanders LLP. Xn xxxx xny Xxxx & Valentine, L.L.P. In case any of the conditions specified above in this Section paragraph 7 shall not have been fulfilled, this Agreement may be terminated by any of you, as to yourself only, upon mailing or delivering written notice thereof to the Company; provided, however, that it shall not be considered a failure to fulfill the conditions specified in Sections 7(c), 7(d) or 7(h) above if the Company temporarily suspends its obligations under such sections in accordance with Section 7A below. Any such termination pursuant to the preceding sentence shall be without liability of the terminating party and the Company to each other, except as otherwise provided in Sections 6(cparagraphs 6(b), 9(e) and 10 hereof.
Appears in 1 contract
Samples: Distribution Agreement (Virginia Electric & Power Co)
Conditions of Your Obligations. Your obligations as agent of the ------------------------------ Company to initiate solicitations of offers to purchase Notes and to continue such solicitations, as the case may be, and your obligations to purchase Notes as principal pursuant to any Terms Agreement or otherwise, shall be subject to the continuing accuracy of the representations and warranties on the part of the Company contained herein, to the accuracy of the statements of the Company's officers made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by the Company of all covenants and agreements contained herein on its part to be performed and observed and to the following additional conditions:
(a) An order or orders of the State Corporation Commission pursuant to the 1935 Act permitting of Virginia authorizing the issuance and sale of the relevant amount of Notes shall be in full force and effect and shall contain no provision unacceptable to you or the Company (but all provisions of such order or orders heretofore entered, copies of which have heretofore been delivered to you, are deemed acceptable to you and the Company, and all provisions of such order or orders hereafter entered shall be deemed acceptable to you and the Company unless within 24 hours after receiving a copy of any such order any party to this Agreement shall give notice to the other parties to the effect that such order contains an unacceptable provision)effect.
(b) You shall receive on the Closing Date the opinion of Troutman Sanders Xxxxxxxx Xxxxxxx LLP, dated the Closing Date, substantially in thx xxxx xttachex the form attached hereto as Exhibit B.
(c) You shall receive (i) on the Closing Date, (ii) on any date that the Registration Statement or the Prospectus shall be amended or supplemented (other than by an amendment or supplement providing solely for the specification of the variable terms of the Notes commonly included in a pricing supplement or an amendment or supplement relating solely to an offering of securities other than the Notes), including an amendment effected by the filing of a document that is incorporated by reference into the Registration Statement or Prospectus (other than (A) a Current Report on Form 8-K containing only information responsive to Item 5 or Item 9 thereof thereof, or Item 10 as proposed or substantially as proposed in Securities Act Release No. 33-8090 (Item 10), and any exhibits relating to such information, (B) the proxy materials of the Company that are distributed in connection with the annual meeting of shareholders and do not contain disclosures pursuant to Items 11, 12, 13, 14, 15 or 16 of Schedule 14A or (C) an amendment to the Company's annual report on Form 10-K filed solely pursuant to General Instruction A to Form 11-K) and (iii) each time, if so indicated in the applicable Terms Agreement or otherwise, the Company sells Notes to you as principal, the legal opinion of McGuireWoods LLP or other counsel satisfactory to you in your reasonable judgment, dated the Closing Date, the date of such amendment, supplement, incorporation by reference or settlement date, relating to a sale of Notes pursuant to a Terms Agreement or otherwise, as the case may be, substantially in the form attached hereto as Exhibit C. In lieu of such opinion to be delivered upon such amendment, supplement, incorporation by reference or settlement date relating to a sale of Notes under a Terms Agreement or otherwise, each counsel last furnishing such an opinion to you shall furnish you with a letter to the effect that you may rely upon such last opinion to the same extent as though it were dated the date of such letter authorizing reliance (except that statements in such last opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such letter authorizing reliance).
(d) You shall receive (i) on the Closing Date, (ii) on any date that the Registration Statement or the Prospectus shall be amended or supplemented to include additional financial information (other than by an amendment or supplement relating solely to the issuance and/or offering of securities other than the Notes), including an amendment effected by the filing of a document that is incorporated by reference into the Registration Statement or Prospectus (other than (A) a Current Report on Form 8-K containing only information responsive to Item 5 5, Item 9 or Item 9 10, thereof and any exhibits relating to such information or (B) the proxy materials of the Company that do not contain disclosures pursuant to Items 11, 12, 13, 14, 15 or 16 of Schedule 14A) and (iii) each time, if so indicated in the applicable Terms Agreement or otherwise, the Company sells Notes to you as principal, from Deloitte & Touche LLP, or another independent public accounting firm satisfactory to you, a letter addressed to you, dated the Closing Date, the date of such amendment, supplement, incorporation or settlement date relating to a sale pursuant to a Terms Agreement or otherwise, as the case may be, containing statements and information of the type ordinarily included in accountants' SAS 72 "comfort letters" to underwriters with respect to financial statements and certain financial information contained or incorporated by reference into the Prospectus, including any pro forma financial information.
(e) Since the date of the most recent audited or unaudited financial statements included in or incorporated by reference in the Registration Statement and Prospectus, and, in the case of your obligation to solicit offers to purchase Notes, up to the time of such solicitations or since the date of any agreement by you to purchase Notes as principal and, in the case of your obligation to purchase Notes as principal, up to the settlement date relating to such purchase pursuant to a Terms Agreement or otherwise, there shall not have been any material adverse change or event which would result in a Material Adverse Effect.
(f) Since the respective most recent dates as of which information is given (i) in the Registration Statement and Prospectus, as amended or supplemented through the date of this Agreement, including by incorporation by reference therein, and up to the Closing Date, the Company shall not have any material contingent liability, except as reflected in or contemplated by the Registration Statement or Prospectus as so amended or supplemented, (ii) in the Registration Statement and Prospectus as amended or supplemented through the date of any agreement by you to purchase Notes as principal, including by incorporation by reference, and prior to each corresponding settlement date, the Company shall not have any material contingent liability, except as reflected in or contemplated by the Registration Statement or Prospectus as so amended or supplemented.
(g) The representations and warranties of the Company in this Agreement shall be true and correct and the Company shall have performed all obligations and satisfied all conditions required of it under this Agreement (i) on the Closing Date and (ii) on any date that the Registration Statement or the Prospectus shall be amended or supplemented (other than by an amendment or supplement providing solely for the specification of the variable terms of the Notes commonly included in a pricing supplement or an amendment or supplement relating solely to an offering of securities other than the Notes), including an amendment effected by the filing of a document that is incorporated by reference into the Registration Statement or Prospectus (other than (A) a Current Report on Form 8-K containing only information responsive to Item 5 or Item 9 thereof and any exhibits relating to such information, (B) the proxy materials of the Company that are distributed in connection with the annual meeting of shareholders and do not contain disclosures pursuant to Items 11, 12, 13, 14, 15 or 16 of Schedule 14A or (C) an amendment to the Company's annual report on Form 10-K filed solely pursuant to General Instruction A to Form 11-K) and (iii) each time, if so indicated in the applicable Terms Agreement or otherwise, the Company sells Notes to you as principal.
(h) On the Closing Date and on any applicable date referred to in Section 7(g)(ii) or (iii) hereof, as the case may be, you shall have received a certificate to such effect, signed by the Chairman of the Board, the President or any Vice President of the Company, it being understood that such certificate shall relate to the Registration Statement and Prospectus as amended or supplemented to the date of such certificate.
(i) All legal proceedings to be taken in connection with the transactions contemplated by this Agreement shall have been satisfactory to Troutman Sanders LLP. Xn xxxx xny of the conditions specified above in this Section 7 shall not have been fulfilled, this Agreement may be terminated by any of you, as to yourself only, upon mailing or delivering written notice thereof to the Company; provided, however, that it shall not be considered a failure to fulfill the conditions specified in Sections 7(c), 7(d) or 7(h) above if the Company temporarily suspends its obligations under such sections in accordance with Section 7A below. Any termination pursuant to the preceding sentence shall be without liability of the terminating party and the Company to each other, except as otherwise provided in Sections 6(c), 9(e) and 10 hereof.or
Appears in 1 contract
Samples: Distribution Agreement (Virginia Electric & Power Co)
Conditions of Your Obligations. Your obligations as agent of the ------------------------------ Company to initiate solicitations of offers to purchase Notes and to continue such solicitations, as the case may be, and your obligations to purchase Notes as principal pursuant to any Terms Agreement or otherwise, shall be subject to the continuing accuracy of the representations and warranties on the part of the Company contained herein, to the accuracy of the statements of the Company's officers made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by the Company of all covenants and agreements contained herein on its part to be performed and observed and to the following additional conditions:
(a) An order or orders of the Commission pursuant to the 1935 Act permitting the issuance and sale of the relevant amount of Notes shall be in full force and effect and shall contain no provision unacceptable to you or the Company (but all provisions of such order or orders heretofore entered, copies of which have heretofore been delivered to you, are deemed acceptable to you and the Company, and all provisions of such order or orders hereafter entered shall be deemed acceptable to you and the Company unless within 24 hours after receiving a copy of any such order any party to this Agreement shall give notice to the other parties to the effect that such order contains an unacceptable provision).
(b) You shall receive on the Closing Date the opinion of Troutman Sanders Xxxxxxxx Xxxxxxx LLP, dated the Closing Date, substantially in thx xxxx xttachex the form attached hereto as Exhibit B.
(c) You shall receive (i) on the Closing Date, (ii) on any date that the Registration Statement or the Prospectus shall be amended or supplemented (other than by an amendment or supplement providing solely for the specification of the variable terms of the Notes commonly included in a pricing supplement or an amendment or supplement relating solely to an offering of securities other than the Notes), including an amendment effected by the filing of a document that is incorporated by reference into the Registration Statement or Prospectus (other than (A) a Current Report on Form 8-K containing only information responsive to Item 5 or Item 9 thereof and any exhibits relating to such information, (B) the proxy materials of the Company that are distributed in connection with the annual meeting of shareholders and do not contain disclosures pursuant to Items 11, 12, 13, 14, 15 or 16 of Schedule 14A or (CB) an amendment to the Company's annual report on Form 10-K filed solely pursuant to General Instruction A to Form 11-K) and (C) with respect to any filings on Form 8-K that are incorporated by reference in the Registration Statement and the Prospectus, compliance with this Section 7(c) shall be required if the Form 8-K only contains information responsive to Items 1,2,3, or 4) and (iii) each time, if so indicated in the applicable Terms Agreement or otherwise, the Company sells Notes to you as principal, the legal opinion of McGuireWoods LLP or other counsel satisfactory to you in your reasonable judgment, dated the Closing Date, the date of such amendment, supplement, incorporation by reference or settlement date, relating to a sale of Notes pursuant to a Terms Agreement or otherwise, as the case may be, substantially in the form attached hereto as Exhibit C. In lieu of such opinion to be delivered upon such amendment, supplement, incorporation by reference or settlement date relating to a sale of Notes under a Terms Agreement or otherwise, each counsel last furnishing such an opinion to you shall furnish you with a letter to the effect that you may rely upon such last opinion to the same extent as though it were dated the date of such letter authorizing reliance (except that statements in such last opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such letter authorizing reliance).
(d) You shall receive (i) on the Closing Date, (ii) on any date that the Registration Statement or the Prospectus shall be amended or supplemented to include additional financial information (other than by an amendment or supplement relating solely to the issuance and/or offering of securities other than the Notes), including an amendment effected by the filing of a document that is incorporated by reference into the Registration Statement or Prospectus (other than (A) a Current Report on Form 8-K containing only information responsive to Item 5 or Item 9 thereof and any exhibits relating to such information or (B) the proxy materials of the Company that do not contain disclosures pursuant to Items 11, 12, 13, 14, 15 or 16 of Schedule 14A14A and (B) with respect to any filings on Form 8-K that are incorporated by reference in the Registration Statement and the Prospectus, compliance with this Section 7(d) shall be required if the Form 8-K only contains information responsive to Items 1,2,3, or 4) and (iii) each time, if so indicated in the applicable Terms Agreement or otherwise, the Company sells Notes to you as principal, from Deloitte & Touche LLP, or another independent public accounting firm satisfactory to you, a letter addressed to you, dated the Closing Date, the date of such amendment, supplement, incorporation or settlement date relating to a sale pursuant to a Terms Agreement or otherwise, as the case may be, containing statements and information of the type ordinarily included in accountants' SAS 72 "comfort letters" to underwriters with respect to financial statements and certain financial information contained or incorporated by reference into the Prospectus, including any pro forma financial information.
(e) Since the date of the most recent audited or unaudited financial statements included in or incorporated by reference in the Registration Statement and Prospectus, and, in the case of your obligation to solicit offers to purchase Notes, up to the time of such solicitations or since the date of any agreement by you to purchase Notes as principal and, in the case of your obligation to purchase Notes as principal, up to the settlement date relating to such purchase pursuant to a Terms Agreement or otherwise, there shall not have been any material adverse change or event which would result in a Material Adverse Effect.
(f) Since the respective most recent dates as of which information is given (i) in the Registration Statement and Prospectus, as amended or supplemented through the date of this Agreement, including by incorporation by reference therein, and up to the Closing Date, the Company shall not have any material contingent liability, except as reflected in or contemplated by the Registration Statement or Prospectus as so amended or supplemented, (ii) in the Registration Statement and Prospectus as amended or supplemented through the date of any agreement by you to purchase Notes as principal, including by incorporation by reference, and prior to each corresponding settlement date, the Company shall not have any material contingent liability, except as reflected in or contemplated by the Registration Statement or Prospectus as so amended or supplemented.
(g) The representations and warranties of the Company in this Agreement shall be true and correct and the Company shall have performed all obligations and satisfied all conditions required of it under this Agreement (i) on the Closing Date and (ii) on any date that the Registration Statement or the Prospectus shall be amended or supplemented (other than by an amendment or supplement providing solely for the specification of the variable terms of the Notes commonly included in a pricing supplement or an amendment or supplement relating solely to an offering of securities other than the Notes), including an amendment effected by the filing of a document that is incorporated by reference into the Registration Statement or Prospectus (other than (A) a Current Report on Form 8-K containing only information responsive to Item 5 or Item 9 thereof and any exhibits relating to such information, (B) the proxy materials of the Company that are distributed in connection with the annual meeting of shareholders and do not contain disclosures pursuant to Items 11, 12, 13, 14, 15 or 16 of Schedule 14A or (CB) an amendment to the Company's annual report on Form 10-K filed solely pursuant to General Instruction A to Form 11-KK and (C) with respect to any filings on Form 8-K that are incorporated by reference in the Registration Statement and the Prospectus, compliance with this Section 7(g) shall be required if the Form 8-K only contains information responsive to Items 1,2,3, or 4) and (iii) each time, if so indicated in the applicable Terms Agreement or otherwise, the Company sells Notes to you as principal.
(h) On the Closing Date and on any applicable date referred to in Section 7(g)(ii) or (iii) hereof, as the case may be, you shall have received a certificate to such effectcertificate, signed by the Chairman of the Board, the President or any Vice President of the Company, it being understood that such certificate shall relate to the Registration Statement and Prospectus as amended or supplemented to the date of such certificate.
(i) All legal proceedings to be taken in connection with the transactions contemplated by this Agreement shall have been satisfactory to Troutman Sanders Xxxxxxxx Xxxxxxx LLP. Xn xxxx xny In case any of the conditions specified above in this Section 7 shall not have been fulfilled, this Agreement may be terminated by any of you, as to yourself only, upon mailing or delivering written notice thereof to the Company; provided, however, that it shall not be considered a failure to fulfill the conditions specified in Sections 7(c), 7(d) or 7(h) above if the Company temporarily suspends its obligations under such sections in accordance with Section 7A below. Any termination pursuant to the preceding sentence shall be without liability of the terminating party and the Company to each other, except as otherwise provided in Sections 6(c), 9(e) and 10 hereof.
Appears in 1 contract
Samples: Distribution Agreement (Dominion Resources Capital Trust Iv)
Conditions of Your Obligations. Your obligations as agent of the ------------------------------ Company to initiate solicitations of offers to purchase Notes and to continue such solicitations, as the case may be, and your obligations to purchase Notes as principal pursuant to any Terms under this Agency Agreement or otherwise, shall be are subject to the continuing accuracy of and compliance with the representations and warranties on the part of the Company contained herein, to Partnership and the accuracy of the statements of the Company's officers General Partner made in any certificate furnished pursuant to the provisions Section 2 hereof, to the performance and observance by the Company Partnership and the General Partner of all covenants and agreements contained herein on its part to be performed and observed their obligations under this Agency Agreement and to the following additional conditions:
(a) An order or orders At the Closing, you will have received the favorable opinion of the Commission pursuant Xxxxxxx Xxxx & Xxxxxxxxx, counsel to the 1935 Act permitting General Partner and the issuance Partnership, dated the Closing date and in form and substance satisfactory to you and your counsel, to the effect that:
(i) all action required to be taken by the Partnership and the General Partner before the subscription for and sale of the relevant amount Units to qualified subscribers therefor has been taken or, before the Closing date, will have been taken, and upon (A) payment of Notes shall be the consideration therefor specified in the Subscription Agreement and receipt of all related executed documents, (B) the execution of the Partnership Agreement by the General Partner as attorney-in-fact for each of the Limited Partners, (C) the filing of the Partnership's certificate of limited partnership in the appropriate jurisdictions, and (D) the payment of any required filing fee, the subscribers will become Limited Partners of the Partnership entitled to all the rights of Limited Partners under the Partnership Agreement, and the Units will conform to all statements relating thereto contained in the Memorandum, including the Partnership Agreement attached as an appendix thereto;
(ii) the Partnership (A) is a limited partnership duly and validly organized pursuant to the Partnership Agreement and the laws of New York and (B) is validly existing under and subject to the laws of New York with full force power and effect authority to conduct the business in which it proposes to engage as described in the Memorandum;
(iii) the information contained in the Memorandum (excluding the financial statements as to which such counsel need express no opinion) complies in all material respects with the requirements of Rule 502(b)(2) and shall contain (d)(2) of Reg. D; to the best of such counsel's knowledge, the General Partner has complied with the requirements of Rule 506 under Reg. D and on the basis of its examination and participation in conferences in connection with the preparation of the Memorandum, nothing has come to such counsel's attention that would lead such counsel to believe that, at any time before or at the Closing, the Memorandum (except for the financial statements as to which such counsel need express no provision unacceptable opinion) contained an untrue statement of a material fact or omitted to you state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(iv) the offer and sale of the Units in the manner contemplated by the Memorandum, this Agency Agreement and the Subscription Agreement are exempt from registration under the Securities Act;
(v) under the Partnership Act, so long as he does not take part in the management or control of the business of the Partnership, the liability of each subscriber for Units pursuant to the Partnership Agreement to make payments to the Partnership or on behalf of the Partnership will not exceed his obligation to make contributions to the Partnership, and his share of the Partnership's assets and undistributed profits (subject to his obligation to repay any funds wrongfully returned or distributed to him); and
(vi) to the best of such counsel's knowledge, information and belief, based upon reasonable investigation, there is no action, suit, litigation, or proceeding before or by any court or governmental agency, federal, state or local, pending or threatened against, or affecting or involving the property or business of the General Partner or the Company business of the Partnership, that would materially and adversely affect the condition (but all provisions financial or other), business or prospects of such order the General Partner or orders heretofore entered, copies of which have heretofore been delivered to you, are deemed acceptable to you and the Company, and all provisions of such order or orders hereafter entered shall be deemed acceptable to you and the Company unless within 24 hours after receiving a copy of any such order any party to this Agreement shall give notice to the other parties to the effect that such order contains an unacceptable provision)Partnership.
(b) You shall receive on At the Closing Date the Closing, you will have received a tax opinion of Troutman Sanders LLPXxxxxxx Xxxx & Xxxxxxxxx, dated the Closing Date, substantially date and confirming its opinion set forth under "Federal Income Tax Aspects" in thx xxxx xttachex hereto as Exhibit B.the Memorandum.
(c) You shall receive (i) on At the Closing Date, (ii) on any date that the Registration Statement or the Prospectus shall be amended or supplemented (other than by an amendment or supplement providing solely for the specification of the variable terms of the Notes commonly included in you will receive a pricing supplement or an amendment or supplement relating solely to an offering of securities other than the Notes), including an amendment effected by the filing of a document that is incorporated by reference into the Registration Statement or Prospectus (other than (A) a Current Report on Form 8-K containing only information responsive to Item 5 or Item 9 thereof and any exhibits relating to such information, (B) the proxy materials of the Company that are distributed in connection with the annual meeting of shareholders and do not contain disclosures pursuant to Items 11, 12, 13, 14, 15 or 16 of Schedule 14A or (C) an amendment to the Company's annual report on Form 10-K filed solely pursuant to General Instruction A to Form 11-K) and (iii) each time, if so indicated in the applicable Terms Agreement or otherwise, the Company sells Notes to you as principal, the legal opinion of McGuireWoods LLP or other counsel satisfactory to you in your reasonable judgmentcertificate, dated the Closing Datedate and signed by the president of the General Partner, the date of such amendment, supplement, incorporation by reference or settlement date, relating to a sale of Notes pursuant to a Terms Agreement or otherwise, as the case may be, substantially in the form attached hereto as Exhibit C. In lieu of such opinion to be delivered upon such amendment, supplement, incorporation by reference or settlement date relating to a sale of Notes under a Terms Agreement or otherwise, each counsel last furnishing such an opinion to you shall furnish you with a letter to the effect that you may rely upon such last opinion to the same extent as though it were dated the date of such letter authorizing reliance (except that statements in such last opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such letter authorizing reliance).
(d) You shall receive (i) on the Closing Datethere has not been, (ii) on any date that the Registration Statement or the Prospectus shall be amended or supplemented to include additional financial information (other than by an amendment or supplement relating solely to the issuance and/or offering of securities other than the Notes), including an amendment effected by the filing of a document that is incorporated by reference into the Registration Statement or Prospectus (other than (A) a Current Report on Form 8-K containing only information responsive to Item 5 or Item 9 thereof and any exhibits relating to such information or (B) the proxy materials of the Company that do not contain disclosures pursuant to Items 11, 12, 13, 14, 15 or 16 of Schedule 14A) and (iii) each time, if so indicated in the applicable Terms Agreement or otherwise, the Company sells Notes to you as principal, from Deloitte & Touche LLP, or another independent public accounting firm satisfactory to you, a letter addressed to you, dated the Closing Date, the date of such amendment, supplement, incorporation or settlement date relating to a sale pursuant to a Terms Agreement or otherwise, as the case may be, containing statements and information of the type ordinarily included in accountants' SAS 72 "comfort letters" to underwriters with respect to financial statements and certain financial information contained or incorporated by reference into the Prospectus, including any pro forma financial information.
(e) Since the date of the most recent audited or unaudited financial statements included in or incorporated by reference in the Registration Statement and Prospectus, and, in the case of your obligation to solicit offers to purchase Notes, up to the time of such solicitations or since the date of any agreement by you to purchase Notes as principal and, in the case of your obligation to purchase Notes as principal, up to the settlement date relating to such purchase pursuant to a Terms Agreement or otherwise, there shall not have been any material adverse change or event which would result in a Material Adverse Effect.
(f) Since the respective most recent dates as of which information is given (i) in the Registration Statement and ProspectusMemorandum, as amended or supplemented through the date of this Agreement, including by incorporation by reference therein, and up to the Closing Date, the Company shall not have any material contingent liabilityadverse change in the condition of the General Partner, except as reflected financial or other, whether or not arising in or contemplated by the Registration Statement or Prospectus as so amended or supplementedordinary course of business, (ii) the other representations and warranties contained in Section 2 hereof are true and correct with the Registration Statement same force and Prospectus effect as amended though expressly made at and as of the Closing, (iii) the General Partner has performed and complied in all material respects with all agreements, covenants and conditions required to be performed and complied with by it before or supplemented through at such Closing, and (iv) neither the date General Partner nor any of its affiliates or agents has, directly or indirectly, paid or awarded any agreement by you commission or other compensation to any person engaged to render advice to a potential subscriber for Units as an inducement to him to advise the subscriber to purchase Notes as principal, including by incorporation by reference, and prior to each corresponding settlement date, the Company shall not have any material contingent liability, except as reflected in or contemplated by the Registration Statement or Prospectus as so amended or supplementedUnits.
(gd) The representations and warranties of the Company in this Agreement shall be true and correct and the Company shall have performed all obligations and satisfied all conditions required of it under this Agreement (i) on the Closing Date and (ii) on If any date that the Registration Statement or the Prospectus shall be amended or supplemented (other than by an amendment or supplement providing solely for the specification of the variable terms of the Notes commonly included in a pricing supplement or an amendment or supplement relating solely to an offering of securities other than the Notes), including an amendment effected by the filing of a document that is incorporated by reference into the Registration Statement or Prospectus (other than (A) a Current Report on Form 8-K containing only information responsive to Item 5 or Item 9 thereof and any exhibits relating to such information, (B) the proxy materials of the Company that are distributed in connection with the annual meeting of shareholders and do not contain disclosures pursuant to Items 11, 12, 13, 14, 15 or 16 of Schedule 14A or (C) an amendment to the Company's annual report on Form 10-K filed solely pursuant to General Instruction A to Form 11-K) and (iii) each time, if so indicated in the applicable Terms Agreement or otherwise, the Company sells Notes to you as principal.
(h) On the Closing Date and on any applicable date referred to in Section 7(g)(ii) or (iii) hereof, as the case may be, you shall have received a certificate to such effect, signed by the Chairman of the Board, the President or any Vice President of the Company, it being understood that such certificate shall relate to the Registration Statement and Prospectus as amended or supplemented to the date of such certificate.
(i) All legal proceedings to be taken in connection with the transactions contemplated by this Agreement shall have been satisfactory to Troutman Sanders LLP. Xn xxxx xny of the conditions specified above in this Section 7 shall have not have been fulfilled when and as required by this Agency Agreement to be fulfilled, you may cancel this Agency Agreement may be terminated by any of you, as to yourself only, upon mailing or delivering written notice thereof to the Company; provided, however, that it shall not be considered a failure to fulfill the conditions specified in Sections 7(c), 7(d) or 7(h) above if the Company temporarily suspends its and all your obligations under it by notifying the General Partner of such sections cancellation in accordance with Section 7A below. Any termination pursuant to the preceding sentence shall writing or by telegram at any time at or before any Closing and any such cancellation will be without liability or obligation of the terminating any party and the Company to each other, any other party except as otherwise provided in Sections 6(c)Section 5, 9(e) Section 6 and 10 Section 9 hereof.
Appears in 1 contract
Samples: Agency Agreement (Shlomon Smith Barney Aaa Energy Fund Ii Lp)
Conditions of Your Obligations. Your obligations as agent of ------------------------------- the ------------------------------ Company to initiate solicitations of offers to purchase Notes and to continue such solicitations, as the case may be, and your obligations to purchase Notes as principal pursuant to any Terms Agreement or otherwise, shall be subject to the continuing accuracy of the representations and warranties on the part of the Company contained herein, to the accuracy of the statements of the Company's officers made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by the Company of all covenants and agreements contained herein on its part to be performed and observed and to the following additional conditions:
(a) An order or orders of the Commission pursuant to the 1935 Act permitting the issuance and sale of the relevant amount of Notes shall be in full force and effect and shall contain no provision unacceptable to you or the Company (but all provisions of such order or orders heretofore entered, copies of which have heretofore been delivered to you, are deemed acceptable to you and the Company, and all provisions of such order or orders hereafter entered shall be deemed acceptable to you and the Company unless within 24 hours after receiving a copy of any such order any party to this Agreement shall give notice to the other parties to the effect that such order contains an unacceptable provision).
(b) You shall receive on the Closing Date the opinion of Troutman Sanders Xxxxxxxx Xxxxxxx LLP, dated the Closing Date, substantially in thx xxxx xttachex the form attached hereto as Exhibit B.
(c) You shall receive (i) on the Closing Date, (ii) on any date that the Registration Statement or the Prospectus shall be amended or supplemented (other than by an amendment or supplement providing solely for the specification of the variable terms of the Notes commonly included in a pricing supplement or an amendment or supplement relating solely to an offering of securities other than the Notes), including an amendment effected by the filing of a document that is incorporated by reference into the Registration Statement or Prospectus (other than (A) a Current Report on Form 8-K containing only information responsive to Item 5 or Item 9 thereof thereof, or Item 10 as proposed or substantially as proposed in Securities Act Release No. 33-8090 (Item 10), and any exhibits relating to such information, (B) the proxy materials of the Company that are distributed in connection with the annual meeting of shareholders and do not contain disclosures pursuant to Items 11, 12, 13, 14, 15 or 16 of Schedule 14A or (C) an amendment to the Company's annual report on Form 10-K filed solely pursuant to General Instruction A to Form 11-K) and (iii) each time, if so indicated in the applicable Terms Agreement or otherwise, the Company sells Notes to you as principal, the legal opinion of McGuireWoods LLP or other counsel satisfactory to you in your reasonable judgment, dated the Closing Date, the date of such amendment, supplement, incorporation by reference or settlement date, relating to a sale of Notes pursuant to a Terms Agreement or otherwise, as the case may be, substantially in the form attached hereto as Exhibit C. In lieu of such opinion to be delivered upon such amendment, supplement, incorporation by reference or settlement date relating to a sale of Notes under a Terms Agreement or otherwise, each counsel last furnishing such an opinion to you shall furnish you with a letter to the effect that you may rely upon such last opinion to the same extent as though it were dated the date of such letter authorizing reliance (except that statements in such last opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such letter authorizing reliance).
(d) You shall receive (i) on the Closing Date, (ii) on any date that the Registration Statement or the Prospectus shall be amended or supplemented to include additional financial information (other than by an amendment or supplement relating solely to the issuance and/or offering of securities other than the Notes), including an amendment effected by the filing of a document that is incorporated by reference into the Registration Statement or Prospectus (other than (A) a Current Report on Form 8-K containing only information responsive to Item 5 5, Item 9 or Item 9 10, thereof and any exhibits relating to such information or (B) the proxy materials of the Company that do not contain disclosures pursuant to Items 11, 12, 13, 14, 15 or 16 of Schedule 14A) and (iii) each time, if so indicated in the applicable Terms Agreement or otherwise, the Company sells Notes to you as principal, from Deloitte & Touche LLP, or another independent public accounting firm satisfactory to you, a letter addressed to you, dated the Closing Date, the date of such amendment, supplement, incorporation or settlement date relating to a sale pursuant to a Terms Agreement or otherwise, as the case may be, containing statements and information of the type ordinarily included in accountants' SAS 72 "comfort letters" to underwriters with respect to financial statements and certain financial information contained or incorporated by reference into the Prospectus, including any pro forma financial information.
(e) Since the date of the most recent audited or unaudited financial statements included in or incorporated by reference in the Registration Statement and Prospectus, and, in the case of your obligation to solicit offers to purchase Notes, up to the time of such solicitations or since the date of any agreement by you to purchase Notes as principal and, in the case of your obligation to purchase Notes as principal, up to the settlement date relating to such purchase pursuant to a Terms Agreement or otherwise, there shall not have been any material adverse change or event which would result in a Material Adverse Effect.
(f) Since the respective most recent dates as of which information is given (i) in the Registration Statement and Prospectus, as amended or supplemented through the date of this Agreement, including by incorporation by reference therein, and up to the Closing Date, the Company shall not have any material contingent liability, except as reflected in or contemplated by the Registration Statement or Prospectus as so amended or supplemented, (ii) in the Registration Statement and Prospectus as amended or supplemented through the date of any agreement by you to purchase Notes as principal, including by incorporation by reference, and prior to each corresponding settlement date, the Company shall not have any material contingent liability, except as reflected in or contemplated by the Registration Statement or Prospectus as so amended or supplemented.
(g) The representations and warranties of the Company in this Agreement shall be true and correct and the Company shall have performed all obligations and satisfied all conditions required of it under this Agreement (i) on the Closing Date and (ii) on any date that the Registration Statement or the Prospectus shall be amended or supplemented (other than by an amendment or supplement providing solely for the specification of the variable terms of the Notes commonly included in a pricing supplement or an amendment or supplement relating solely to an offering of securities other than the Notes), including an amendment effected by the filing of a document that is incorporated by reference into the Registration Statement or Prospectus (other than (A) a Current Report on Form 8-K containing only information responsive to Item 5 5, Item 9, or Item 9 10 thereof and any exhibits relating to such information, (B) the proxy materials of the Company that are distributed in connection with the annual meeting of shareholders and do not contain disclosures pursuant to Items 11, 12, 13, 14, 15 or 16 of Schedule 14A or (C) an amendment to the Company's annual report on Form 10-K filed solely pursuant to General Instruction A to Form 11-K) and (iii) each time, if so indicated in the applicable Terms Agreement or otherwise, the Company sells Notes to you as principal.
(h) On the Closing Date and on any applicable date referred to in Section 7(g)(ii) or (iii) hereof, as the case may be, you shall have received a certificate to such effectcertificate, signed by the Chairman of the Board, the President or any Vice President of the Company, it being understood that such certificate shall relate to the Registration Statement and Prospectus as amended or supplemented to the date of such certificate.
(i) All legal proceedings to be taken in connection with the transactions contemplated by this Agreement shall have been satisfactory to Troutman Sanders Xxxxxxxx Xxxxxxx LLP. Xn xxxx xny In case any of the conditions specified above in this Section 7 shall not have been fulfilled, this Agreement may be terminated by any of you, as to yourself only, upon mailing or delivering written notice thereof to the Company; provided, however, that it shall not be considered a failure to fulfill the conditions specified in Sections 7(c), 7(d) or 7(h) above if the Company temporarily suspends its obligations under such sections in accordance with Section 7A below. Any termination pursuant to the preceding sentence shall be without liability of the terminating party and the Company to each other, except as otherwise provided in Sections 6(c), 9(e) and 10 hereof.
Appears in 1 contract
Samples: Distribution Agreement (Consolidated Natural Gas Co/Va)
Conditions of Your Obligations. Your obligations as agent of the ------------------------------ Company to initiate solicitations of offers to purchase Notes and to continue such solicitations, as the case may be, and your obligations to purchase Notes as principal pursuant to any Terms Agreement or otherwise, shall be subject to the continuing accuracy of the representations and warranties on the part of the Company contained herein, to the accuracy of the statements of the Company's officers made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by the Company of all covenants and agreements contained herein on its part to be performed and observed and to the following additional conditions:
(a) An order or orders of the Virginia Commission pursuant to the 1935 Act permitting the issuance and sale of the relevant amount of Notes shall be in full force and effect and shall contain no provision unacceptable to you or the Company (but all provisions of such order or orders heretofore entered, copies of which have heretofore been delivered to you, are deemed acceptable to you and the Company, and all provisions of such order or orders hereafter entered shall be deemed acceptable to you and the Company unless within 24 hours after receiving a copy of any such order any party to this Agreement shall give notice to the other parties to the effect that such order contains an unacceptable provision).
(b) You shall receive on the Closing Date the opinion of Troutman Sanders Xxxxxxxx Xxxxxxx LLP, dated the Closing Date, substantially in thx xxxx xttachex the form attached hereto as Exhibit B.
(c) You shall receive (i) on the Closing Date, (ii) on any date that the Registration Statement or the Prospectus shall be amended or supplemented (other than by an amendment or supplement providing solely for the specification of the variable terms of the Notes commonly included in a pricing supplement or an amendment or supplement relating solely to an offering of securities other than the Notes), including an amendment effected by the filing of a document that is incorporated by reference into the Registration Statement or Prospectus (other than (A) a Current Report on Form 8-K containing only information responsive to Item 5 or Item 9 thereof thereof, or Item 10 as proposed or substantially as proposed in Securities Act Release No. 33-8090 (Item 10), and any exhibits relating to such information, information or (B) the proxy materials of the Company that are distributed in connection with the annual meeting of shareholders and do not contain disclosures pursuant to Items 11, 12, 13, 14, 15 or 16 of Schedule 14A or (C) an amendment to the Company's annual report on Form 10-K filed solely pursuant to General Instruction A to Form 11-K) and (iii) each time, if so indicated in the applicable Terms Agreement or otherwise, the Company sells Notes to you as principal, the legal opinion of McGuireWoods LLP or other counsel satisfactory to you in your reasonable judgment, dated the Closing Date, the date of such amendment, supplement, incorporation by reference or settlement date, relating to a sale of Notes pursuant to a Terms Agreement or otherwise, as the case may be, substantially in the form attached hereto as Exhibit C. In lieu of such opinion to be delivered upon such amendment, supplement, incorporation by reference or settlement date relating to a sale of Notes under a Terms Agreement or otherwise, each counsel last furnishing such an opinion to you shall furnish you with a letter to the effect that you may rely upon such last opinion to the same extent as though it were dated the date of such letter authorizing reliance (except that statements in such last opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such letter authorizing reliance).
(d) You shall receive (i) on the Closing Date, (ii) on any date that the Registration Statement or the Prospectus shall be amended or supplemented to include additional financial information (other than by an amendment or supplement relating solely to the issuance and/or offering of securities other than the Notes), including an amendment effected by the filing of a document that is incorporated by reference into the Registration Statement or Prospectus (other than (A) a Current Report on Form 8-K containing only information responsive to Item 5 5, Item 9 or Item 9 10 thereof and any exhibits relating to such information or (B) the proxy materials of the Company that do not contain disclosures pursuant to Items 11, 12, 13, 14, 15 or 16 of Schedule 14Ainformation) and (iii) each time, if so indicated in the applicable Terms Agreement or otherwise, the Company sells Notes to you as principal, from Deloitte & Touche LLP, or another independent public accounting firm satisfactory to you, a letter addressed to you, dated the Closing Date, the date of such amendment, supplement, incorporation or settlement date relating to a sale pursuant to a Terms Agreement or otherwise, as the case may be, containing statements and information of the type ordinarily included in accountants' SAS 72 "comfort letters" to underwriters with respect to financial statements and certain financial information contained or incorporated by reference into the Prospectus, including any pro forma financial information.
(e) Since the date of the most recent audited or unaudited financial statements included in or incorporated by reference in the Registration Statement and Prospectus, and, in the case of your obligation to solicit offers to purchase Notes, up to the time of such solicitations or since the date of any agreement by you to purchase Notes as principal and, in the case of your obligation to purchase Notes as principal, up to the settlement date relating to such purchase pursuant to a Terms Agreement or otherwise, there shall not have been any material adverse change or event which would result in a Material Adverse Effect.
(f) Since the respective most recent dates as of which information is given (i) in the Registration Statement and Prospectus, as amended or supplemented through the date of this Agreement, including by incorporation by reference therein, and up to the Closing Date, the Company shall not have any material contingent liability, except as reflected in or contemplated by the Registration Statement or Prospectus as so amended or supplemented, (ii) in the Registration Statement and Prospectus as amended or supplemented through the date of any agreement by you to purchase Notes as principal, including by incorporation by reference, and prior to each corresponding settlement date, the Company shall not have any material contingent liability, except as reflected in or contemplated by the Registration Statement or Prospectus as so amended or supplemented.
(g) The representations and warranties of the Company in this Agreement shall be true and correct and the Company shall have performed all obligations and satisfied all conditions required of it under this Agreement (i) on the Closing Date and (ii) on any date that the Registration Statement or the Prospectus shall be amended or supplemented (other than by an amendment or supplement providing solely for the specification of the variable terms of the Notes commonly included in a pricing supplement or an amendment or supplement relating solely to an offering of securities other than the Notes), including an amendment effected by the filing of a document that is incorporated by reference into the Registration Statement or Prospectus (other than (A) a Current Report on Form 8-K containing only information responsive to Item 5 5, Item 9, or Item 9 10 thereof and any exhibits relating to such information, information or (B) the proxy materials of the Company that are distributed in connection with the annual meeting of shareholders and do not contain disclosures pursuant to Items 11, 12, 13, 14, 15 or 16 of Schedule 14A or (C) an amendment to the Company's annual report on Form 10-K filed solely pursuant to General Instruction A to Form 11-K) and (iii) each time, if so indicated in the applicable Terms Agreement or otherwise, the Company sells Notes to you as principal.
(h) On the Closing Date and on any applicable date referred to in Section 7(g)(ii) or (iii) hereof, as the case may be, you shall have received a certificate to such effectcertificate, signed by the Chairman of the Board, the President or any Vice President of Presidentof the Company, it being understood that such certificate shall relate to the Registration Statement and Prospectus as amended or supplemented to the date of such certificate.
(i) All legal proceedings to be taken in connection with the transactions contemplated by this Agreement shall have been satisfactory to Troutman Sanders Xxxxxxxx Xxxxxxx LLP. Xn xxxx xny In case any of the conditions specified above in this Section 7 shall not have been fulfilled, this Agreement may be terminated by any of you, as to yourself only, upon mailing or delivering written notice thereof to the Company; provided, however, that it shall not be considered a failure to fulfill the conditions specified in Sections 7(c), 7(d) or 7(h) above if the Company temporarily suspends its obligations under such sections in accordance with Section 7A below. Any termination pursuant to the preceding sentence shall be without liability of the terminating party and the Company to each other, except as otherwise provided in Sections 6(c), 9(e) and 10 hereof.
Appears in 1 contract
Samples: Distribution Agreement (Virginia Power Capital Trust Ii)
Conditions of Your Obligations. Your obligations as agent of the ------------------------------ Company to initiate solicitations of offers to purchase Notes and to continue such solicitations, as the case may be, and your obligations to purchase Notes as principal pursuant to any Terms under this Agency Agreement or otherwise, shall be are subject to the continuing accuracy of and compliance with the representations and warranties on the part of the Company contained herein, to Partnership and the accuracy of the statements of the Company's officers General Partner made in any certificate furnished pursuant to the provisions Section 2 hereof, to the performance and observance by the Company Partnership and the General Partner of all covenants and agreements contained herein on its part to be performed and observed their obligations under this Agency Agreement and to the following additional conditions:
(a) An order or orders At the Closing, you will have received the favorable opinion of the Commission pursuant Xxxxxxx Xxxx & Xxxxxxxxx LLP, counsel to the 1935 Act permitting General Partner and the issuance Partnership, dated the Closing date and in form and substance satisfactory to you and your counsel, to the effect that:
(i) all action required to be taken by the Partnership and the General Partner before the subscription for and sale of the relevant amount Units to qualified subscribers therefor has been taken or, before the Closing date, will have been taken, and upon (A) payment of Notes shall be the consideration therefor specified in the Subscription Agreement and receipt of all related executed documents, (B) the execution of the Partnership Agreement by the General Partner as attorney-in-fact for each of the Limited Partners, (C) the filing of the Partnership’s certificate of limited partnership in the appropriate jurisdictions, and (D) the payment of any required filing fee, the subscribers will become Limited Partners of the Partnership entitled to all the rights of Limited Partners under the Partnership Agreement, and the Units will conform to all statements relating thereto contained in the Memorandum, including the Partnership Agreement attached as an appendix thereto;
(ii) the Partnership (A) is a limited partnership duly and validly organized pursuant to the Partnership Agreement and the laws of New York and (B) is validly existing under and subject to the laws of New York with full force power and effect authority to conduct the business in which it proposes to engage as described in the Memorandum;
(iii) the information contained in the Memorandum (excluding the financial statements as to which such counsel need express no opinion) complies in all material respects with the requirements of Rule 502(b)(2) and shall contain (d)(2) of Reg. D; to the best of such counsel’s knowledge, the General Partner has complied with the requirements of Rule 506 under Reg. D and on the basis of its examination and participation in conferences in connection with the preparation of the Memorandum, nothing has come to such counsel’s attention that would lead such counsel to believe that, at any time before or at the Closing, the Memorandum (except for the financial statements as to which such counsel need express no provision unacceptable opinion) contained an untrue statement of a material fact or omitted to you state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading;
(iv) the offer and sale of the Units in the manner contemplated by the Memorandum, this Agency Agreement and the Subscription Agreement are exempt from registration under the Securities Act;
(v) under the Partnership Act, so long as he does not take part in the management or control of the business of the Partnership, the liability of each subscriber for Units pursuant to the Partnership Agreement to make payments to the Partnership or on behalf of the Partnership will not exceed his obligation to make contributions to the Partnership, and his share of the Partnership’s assets and undistributed profits (subject to his obligation to repay any funds wrongfully returned or distributed to him); and
(vi) to the best of such counsel’s knowledge, information and belief, based upon reasonable investigation, there is no action, suit, litigation, or proceeding before or by any court or governmental agency, federal, state or local, pending or threatened against, or affecting or involving the property or business of the General Partner or the Company business of the Partnership, that would materially and adversely affect the condition (but all provisions financial or other), business or prospects of such order the General Partner or orders heretofore entered, copies of which have heretofore been delivered to you, are deemed acceptable to you and the Company, and all provisions of such order or orders hereafter entered shall be deemed acceptable to you and the Company unless within 24 hours after receiving a copy of any such order any party to this Agreement shall give notice to the other parties to the effect that such order contains an unacceptable provision)Partnership.
(b) You shall receive on At the Closing Date the Closing, you will have received a tax opinion of Troutman Sanders Xxxxxxx Xxxx & Xxxxxxxxx LLP, dated the Closing Date, substantially date and confirming its opinion set forth under ‘‘U.S. Federal Income Tax Considerations’’ in thx xxxx xttachex hereto as Exhibit B.the Memorandum.
(c) You shall receive (i) on At the Closing Date, (ii) on any date that the Registration Statement or the Prospectus shall be amended or supplemented (other than by an amendment or supplement providing solely for the specification of the variable terms of the Notes commonly included in you will receive a pricing supplement or an amendment or supplement relating solely to an offering of securities other than the Notes), including an amendment effected by the filing of a document that is incorporated by reference into the Registration Statement or Prospectus (other than (A) a Current Report on Form 8-K containing only information responsive to Item 5 or Item 9 thereof and any exhibits relating to such information, (B) the proxy materials of the Company that are distributed in connection with the annual meeting of shareholders and do not contain disclosures pursuant to Items 11, 12, 13, 14, 15 or 16 of Schedule 14A or (C) an amendment to the Company's annual report on Form 10-K filed solely pursuant to General Instruction A to Form 11-K) and (iii) each time, if so indicated in the applicable Terms Agreement or otherwise, the Company sells Notes to you as principal, the legal opinion of McGuireWoods LLP or other counsel satisfactory to you in your reasonable judgmentcertificate, dated the Closing Datedate and signed by the president of the General Partner, the date of such amendment, supplement, incorporation by reference or settlement date, relating to a sale of Notes pursuant to a Terms Agreement or otherwise, as the case may be, substantially in the form attached hereto as Exhibit C. In lieu of such opinion to be delivered upon such amendment, supplement, incorporation by reference or settlement date relating to a sale of Notes under a Terms Agreement or otherwise, each counsel last furnishing such an opinion to you shall furnish you with a letter to the effect that you may rely upon such last opinion to the same extent as though it were dated the date of such letter authorizing reliance (except that statements in such last opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended and supplemented to the time of delivery of such letter authorizing reliance).
(d) You shall receive (i) on the Closing Datethere has not been, (ii) on any date that the Registration Statement or the Prospectus shall be amended or supplemented to include additional financial information (other than by an amendment or supplement relating solely to the issuance and/or offering of securities other than the Notes), including an amendment effected by the filing of a document that is incorporated by reference into the Registration Statement or Prospectus (other than (A) a Current Report on Form 8-K containing only information responsive to Item 5 or Item 9 thereof and any exhibits relating to such information or (B) the proxy materials of the Company that do not contain disclosures pursuant to Items 11, 12, 13, 14, 15 or 16 of Schedule 14A) and (iii) each time, if so indicated in the applicable Terms Agreement or otherwise, the Company sells Notes to you as principal, from Deloitte & Touche LLP, or another independent public accounting firm satisfactory to you, a letter addressed to you, dated the Closing Date, the date of such amendment, supplement, incorporation or settlement date relating to a sale pursuant to a Terms Agreement or otherwise, as the case may be, containing statements and information of the type ordinarily included in accountants' SAS 72 "comfort letters" to underwriters with respect to financial statements and certain financial information contained or incorporated by reference into the Prospectus, including any pro forma financial information.
(e) Since the date of the most recent audited or unaudited financial statements included in or incorporated by reference in the Registration Statement and Prospectus, and, in the case of your obligation to solicit offers to purchase Notes, up to the time of such solicitations or since the date of any agreement by you to purchase Notes as principal and, in the case of your obligation to purchase Notes as principal, up to the settlement date relating to such purchase pursuant to a Terms Agreement or otherwise, there shall not have been any material adverse change or event which would result in a Material Adverse Effect.
(f) Since the respective most recent dates as of which information is given (i) in the Registration Statement and ProspectusMemorandum, as amended or supplemented through the date of this Agreement, including by incorporation by reference therein, and up to the Closing Date, the Company shall not have any material contingent liabilityadverse change in the condition of the General Partner, except as reflected financial or other, whether or not arising in or contemplated by the Registration Statement or Prospectus as so amended or supplementedordinary course of business, (ii) the other representations and warranties made by the General Partner contained in Section 2 hereof are true and correct with the Registration Statement same force and Prospectus effect as amended though expressly made at and as of the Closing, (iii) the General Partner has performed and complied in all material respects with all agreements, covenants and conditions required to be performed and complied with by it before or supplemented through at such Closing, and (iv) neither the date General Partner nor any of its affiliates or agents has, directly or indirectly, paid or awarded any agreement by you commission or other compensation to any person engaged to render advice to a potential subscriber for Units as an inducement to him to advise the subscriber to purchase Notes as principal, including by incorporation by reference, and prior to each corresponding settlement date, the Company shall not have any material contingent liability, except as reflected in or contemplated by the Registration Statement or Prospectus as so amended or supplementedUnits.
(gd) The representations and warranties of the Company in this Agreement shall be true and correct and the Company shall have performed all obligations and satisfied all conditions required of it under this Agreement (i) on the Closing Date and (ii) on If any date that the Registration Statement or the Prospectus shall be amended or supplemented (other than by an amendment or supplement providing solely for the specification of the variable terms of the Notes commonly included in a pricing supplement or an amendment or supplement relating solely to an offering of securities other than the Notes), including an amendment effected by the filing of a document that is incorporated by reference into the Registration Statement or Prospectus (other than (A) a Current Report on Form 8-K containing only information responsive to Item 5 or Item 9 thereof and any exhibits relating to such information, (B) the proxy materials of the Company that are distributed in connection with the annual meeting of shareholders and do not contain disclosures pursuant to Items 11, 12, 13, 14, 15 or 16 of Schedule 14A or (C) an amendment to the Company's annual report on Form 10-K filed solely pursuant to General Instruction A to Form 11-K) and (iii) each time, if so indicated in the applicable Terms Agreement or otherwise, the Company sells Notes to you as principal.
(h) On the Closing Date and on any applicable date referred to in Section 7(g)(ii) or (iii) hereof, as the case may be, you shall have received a certificate to such effect, signed by the Chairman of the Board, the President or any Vice President of the Company, it being understood that such certificate shall relate to the Registration Statement and Prospectus as amended or supplemented to the date of such certificate.
(i) All legal proceedings to be taken in connection with the transactions contemplated by this Agreement shall have been satisfactory to Troutman Sanders LLP. Xn xxxx xny of the conditions specified above in this Section 7 shall have not have been fulfilled when and as required by this Agency Agreement to be fulfilled, you may cancel this Agency Agreement may be terminated by any of you, as to yourself only, upon mailing or delivering written notice thereof to the Company; provided, however, that it shall not be considered a failure to fulfill the conditions specified in Sections 7(c), 7(d) or 7(h) above if the Company temporarily suspends its and all your obligations under it by notifying the General Partner of such sections cancellation in accordance with Section 7A below. Any termination pursuant to the preceding sentence shall writing or by telegram at any time at or before any Closing and any such cancellation will be without liability or obligation of the terminating any party and the Company to each other, any other party except as otherwise provided in Sections 6(c), 9(e) Section 5 and 10 Section 9 hereof.
Appears in 1 contract
Samples: Agency Agreement (Citigroup Abingdon Futures Fund LP)
