Common use of Representations and Warranties of the Corporation Clause in Contracts

Appears in 1 contract

Samples: Underwriting Agreement (KWESST Micro Systems Inc.)

Representations and Warranties of the Corporation. The Corporation represents and warrants to, and agrees with, the several Underwriters that: : (a) A registration statement (No. 333- , which also constitutes a post- effective amendment to a previous registration statement No. 333- 52204), including a combined prospectus, relating to the Notes and certain other securities has been filed with the Securities and Exchange Commission ("Commission") under the Securities Act of ~~1933~~ 1933, as amended (the "1933 Act"). Such registration statement and any ~~post-~~post- effective amendment thereto, each in the form heretofore delivered to you, and, excluding exhibits thereto but including all documents incorporated by reference in the prospectus contained therein, ~~to you~~ for each of the other Underwriters, have been declared effective by the Commission in such form, and no stop order suspending the effectiveness of such registration statement has been issued and no proceeding for that purpose has been initiated or threatened by the Commission (any preliminary prospectus included in such registration statement or filed with the Commission pursuant to Rule 424(a) of the rules and regulations of the Commission under the 1933 Act ("1933 Act Regulations") being hereinafter called a "Preliminary Prospectus"; the various parts of such registration statement, including all exhibits thereto and including the documents incorporated by reference in the prospectus contained in the registration statement at the time such part of the registration statement became effective, each as amended at the time such part of the registration statement became effective, being hereinafter called the "Registration Statement"; and the final prospectus relating to the Notes, in the form first filed pursuant to Rule 424(b) under the 1933 ~~Act~~Act Regulations, being hereinafter called the "Prospectus"; and any reference herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein, as of the date of such Preliminary Prospectus or Prospectus, as the case may be; any reference to any amendment or supplement to any Preliminary Prospectus or Prospectus shall be deemed to refer to and include any documents filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended (the "1934 Act"), and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Corporation filed pursuant to Section 13(a) or 15(d) of the 1934 Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement). (b) The Registration Statement conforms and the Prospectus will conform in all material respects to the requirements of the 1933 Act and the 1933 Act Regulations, and the Registration Statement does not and the Prospectus will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the Corporation makes no warranty or representation to the Underwriters with respect to any statements or omissions made in reliance upon and in conformity with written information furnished to the Corporation by any Underwriter specifically for use therein or any information set forth in the Prospectus under the caption "Description of the Series Senior Notes--Book-Entry Only Issuance--The Depository Trust Company." (c) The documents incorporated by reference in the Prospectus, at the time they were filed with the Commission, complied in all material respects with the requirements of the 1934 Act and the rules and regulations of the Commission thereunder (the "1934 Act Regulations"), and, when read together with the other information in the Prospectus, do not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and any documents deemed to be incorporated by reference in the Prospectus will, when they are filed with the Commission, comply in all material respects with the requirements of the 1934 Act and the 1934 Act Regulations, and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the Corporation makes no warranty or representation to the Underwriters with respect to any statements or omissions made in reliance upon and in conformity with written information furnished to the Corporation by any Underwriter specifically for use therein or any information set forth in the Prospectus under the caption "Description of the Series Senior Notes--Book-Entry Only Issuance--The Depository Trust Company." (d) The compliance by the Corporation with all of the provisions of this Agreement has been duly authorized by all necessary corporate action and the consummation of the transactions herein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Corporation or any of its Principal Subsidiaries (as hereinafter defined) is a party or by which any of them or their respective property is bound or to which any of their property or assets is subject that would have a material adverse effect on the business, financial condition or results of operations of the Corporation and its subsidiaries, taken as a whole, nor will such action result in any violation of the provisions of the Restated Articles of Incorporation or By-Laws of the Corporation or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Corporation or its Principal Subsidiaries or any of their respective property that would have a material adverse effect on the business, financial condition or results of operations of the Corporation and its subsidiaries, taken as a whole; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the consummation by the Corporation of the transactions contemplated by this Agreement, except for authorization by the North Carolina Utilities Commission and The Public Service Commission of South Carolina and the registration under the 1933 Act of the Notes, qualification under the Trust Indenture Act of 1939 and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters. (e) This Agreement has been duly authorized, executed and delivered by the Corporation. (f) Each of Duke Capital Corporation, PanEnergy Corp, Duke Energy Natural Gas Corporation and Texas Eastern Transmission Corporation, each a Delaware corporation (and herein called a "Principal Subsidiary"), is a direct or indirect wholly owned subsidiary of the Corporation.

Appears in 1 contract

Samples: Underwriting Agreement (Duke Energy Capital Trust V)

Representations and Warranties of the Corporation. The Corporation represents and warrants to, and agrees with, the several ~~Underwriters~~ Underwriters, the Forward Purchaser and the Forward Seller that: : (a) ~~A registration~~ Registration statement (No. 333-233896), including a prospectus, relating to the ~~Notes~~ Shares and certain other securities has been filed with the Securities and Exchange Commission ("the “Commission"”) under the Securities Act of ~~1933~~ 1933, as amended (the "“1933 Act"”). Such registration statement and any post-effective amendment thereto, each in the form heretofore delivered to you, ~~and, excluding exhibits thereto but including all documents incorporated by reference in~~ became effective upon filing with the ~~prospectus contained therein,~~ Commission pursuant to ~~you for each~~ Rule 462 of the ~~other Underwriters, have been declared effective by~~ rules and regulations of the Commission ~~in such form~~under the 1933 Act (the “1933 Act Regulations”), and no stop order suspending the effectiveness of such registration statement has been issued and no proceeding for that purpose or pursuant to Section 8A of the 1933 Act has been initiated or threatened by the Commission (if prepared, any preliminary prospectus supplement specifically relating to the Shares immediately prior to the Applicable Time included in such registration statement or filed with the Commission pursuant to Rule ~~424(a~~424(b) of the ~~rules and regulations of the Commission under the~~ 1933 Act Regulations being hereinafter called a "“Preliminary Prospectus"”); the ~~various parts~~ term “Registration Statement” means the registration statement as deemed revised pursuant to Rule 430B(f)(1) of the 1933 Act Regulations on the date of such registration statement’s effectiveness for purposes of Section 11 of the 1933 Act, as such section applies to the Corporation and the Underwriters for the Shares pursuant to Rule 430B(f)(2) of the 1933 Act Regulations (the “Effective Date”), including all exhibits thereto and including the documents incorporated by reference in the prospectus contained in the ~~registration statement~~ Registration Statement at the time such part of the ~~registration statement~~ Registration Statement became effective~~, each as amended~~ ; the term “Base Prospectus” means the prospectus filed with the Commission on the date hereof by the Corporation; and the term “Prospectus” means the Base Prospectus together with the prospectus supplement specifically relating to the Shares prepared in accordance with the provisions of Rule 430B and promptly filed after execution and delivery of this Agreement pursuant to Rule 430B or Rule 424(b) of the 1933 Act Regulations; any information included in such Prospectus that was omitted from the Registration Statement at the time ~~such~~ it became effective but that is deemed to be a part of ~~the~~ and included in such registration statement ~~became effective, being hereinafter called the "Registration Statement"; and the final prospectus relating to the Notes, in the form first filed~~ pursuant to Rule ~~424(b) under the 1933 Act, being hereinafter called the "Prospectus";~~ 430B is referred to as “Rule 430B Information;” and any reference herein to any Registration Statement, Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference ~~therein, as of~~ therein prior to the date ~~of such Preliminary Prospectus or Prospectus, as the case may be~~hereof; any reference to any amendment or supplement to any Preliminary Prospectus or Prospectus shall be deemed to refer to and include any documents filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended (the "“1934 Act"”), and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Corporation filed pursuant to Section 13(a) or 15(d) of the 1934 Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement). For purposes of this Agreement, the term “Applicable Time” means 7:30 p.m. (New York City time) on the date hereof.

Appears in 1 contract

Representations and Warranties of the Corporation. The Corporation represents and warrants to, and agrees with, the several Underwriters that: (a) A registration statement (No. 333-14209, which also constitutes a post- effective amendment to a previous registration statement No. 333-02571), including a prospectus, relating to the ~~Notes~~ Bonds has been filed with the Securities and Exchange Commission ("Commission") under the Securities Act of 1933 (the "1933 Act"). Such registration statement and any post-effective amendment thereto, each in the form heretofore delivered to you, and, excluding exhibits thereto but including all documents incorporated by reference in the prospectus contained therein, ~~to you~~ for each of the other Underwriters, have been declared effective by the Commission in such form, and no stop order suspending the effectiveness of such registration statement has been issued and no proceeding for that purpose has been initiated or threatened by the Commission (any preliminary prospectus included in such registration statement or filed with the Commission pursuant to Rule 424(a) of the rules and regulations of the Commission under the 1933 Act being hereinafter called a "Preliminary Prospectus"; the various parts of such registration statement, including all exhibits thereto and including the documents incorporated by reference in the prospectus contained in the registration statement at the time such part of the registration statement became effective, each as amended at the time such part of the registration statement became effective, being hereinafter called the "Registration Statement"; and the final prospectus relating to the ~~Notes~~Bonds, in the form first filed pursuant to Rule 424(b) under the 1933 Act, being hereinafter called the "Prospectus"; and any reference herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein, as of the date of such Preliminary Prospectus or Prospectus, as the case may be; any reference to any amendment or supplement to any Preliminary Prospectus or Prospectus shall be deemed to refer to and include any documents filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended (the "1934 Act"), and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Corporation filed pursuant to Section 13(a) or 15(d) of the 1934 Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement).

Appears in 1 contract

Representations and Warranties of the Corporation. The Corporation represents and warrants to, and agrees with, the several Underwriters that: : (a) ~~A registration~~ Registration statement (No. 333-169633), including a prospectus, relating to the ~~Notes~~ Debentures and certain other securities has been filed with the Securities and Exchange Commission ("the “Commission"”) under the Securities Act of ~~1933~~ 1933, as amended (the "“1933 Act"”). Such registration statement and any post-effective amendment thereto, each in the form heretofore delivered to you, ~~and, excluding exhibits thereto but including all documents incorporated by reference in~~ became effective upon filing with the ~~prospectus contained therein,~~ Commission pursuant to ~~you for each~~ Rule 462 of the ~~other Underwriters, have been declared effective by~~ rules and regulations of the Commission ~~in such form~~under the 1933 Act (the “1933 Act Regulations”), and no stop order suspending the effectiveness of such registration statement has been issued and no proceeding for that purpose or pursuant to Section 8A of the 1933 Act has been initiated or threatened by the Commission (if prepared, any preliminary prospectus supplement specifically relating to the Debentures immediately prior to the Applicable Time (as defined below) included in such registration statement or filed with the Commission pursuant to Rule ~~424(a~~424(b) of the ~~rules and regulations of the Commission under the~~ 1933 Act Regulations being hereinafter called a "“Preliminary Prospectus"”); the ~~various parts~~ term “Registration Statement” means the registration statement as deemed revised pursuant to Rule 430B(f)(1) of the 1933 Act Regulations on the date of such registration statement’s effectiveness for purposes of Section 11 of the 1933 Act, as such section applies to the Corporation and the Underwriters for the Debentures pursuant to Rule 430B(f)(2) of the 1933 Act Regulations (the “Effective Date”), including all exhibits thereto and including the documents incorporated by reference in the prospectus contained in the ~~registration statement~~ Registration Statement at the time such part of the ~~registration statement~~ Registration Statement became effective~~, each as amended~~ ; the term “Base Prospectus” means the prospectus filed with the Commission on the date hereof by the Corporation; and the term “Prospectus” means the Base Prospectus together with the prospectus supplement specifically relating to the Debentures prepared in accordance with the provisions of Rule 430B and promptly filed after execution and delivery of this Agreement pursuant to Rule 430B or Rule 424(b) of the 1933 Act Regulations; any information included in such Prospectus that was omitted from the Registration Statement at the time ~~such~~ it became effective but that is deemed to be a part of ~~the~~ and included in such registration statement ~~became effective, being hereinafter called the "Registration Statement"; and the final prospectus relating to the Notes, in the form first filed~~ pursuant to Rule ~~424(b) under the 1933 Act, being hereinafter called the "Prospectus";~~ 430B is referred to as “Rule 430B Information;” and any reference herein to any Registration Statement, Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference ~~therein, as of~~ therein prior to the date ~~of such Preliminary Prospectus or Prospectus, as the case may be~~hereof; any reference to any amendment or supplement to any Preliminary Prospectus or Prospectus shall be deemed to refer to and include any documents filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended (the "“1934 Act"”), and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Corporation filed pursuant to Section 13(a) or 15(d) of the 1934 Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement). For purposes of this Agreement, the term “Applicable Time” means 3:15 p.m. (New York City time) on the date hereof.

Appears in 1 contract

Representations and Warranties of the Corporation. The Corporation represents and warrants to, and agrees with, the several Underwriters that: : (a) A registration statement (No. ), including a prospectus, relating to the Notes has been filed with the Securities and Exchange Commission (the "Commission") under the Securities Act of ~~1933~~ 1933, as amended (the "1933 Act"). Such registration statement and any post-effective amendment thereto, each in the form heretofore delivered to you~~, and, excluding exhibits thereto but including all documents incorporated by reference in the prospectus contained therein, to you for each of the other Underwriters~~, have been declared effective by the Commission in such form, and no stop order suspending the effectiveness of such registration statement has been issued and no proceeding for that purpose has been initiated or threatened by the Commission (any preliminary prospectus included in such registration statement or filed with the Commission pursuant to Rule 424(a) of the rules and regulations of the Commission under the 1933 Act being hereinafter called a "Preliminary Prospectus"; the various parts of such registration statement, including all exhibits thereto and including the documents incorporated by reference in the prospectus contained in the registration statement at the time such part of the registration statement became effective, each as amended at the time such part of the registration statement became effective, being hereinafter called the "Registration Statement"; and the final prospectus relating to the Notes, in the form first filed pursuant to Rule 424(b) under the 1933 Act, being hereinafter called the "Prospectus"; and any reference herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein, as of the date of such Preliminary Prospectus or Prospectus, as the case may be; any reference to any amendment or supplement to any Preliminary Prospectus or Prospectus shall be deemed to refer to and include any documents filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended (the "1934 Act"), and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Corporation filed pursuant to Section 13(a) or 15(d) of the 1934 Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement). (b) The Registration Statement conforms and the Prospectus will conform in all material respects to the requirements of the 1933 Act and the rules and regulations thereunder ("1933 Act Regulations"), and the Registration Statement does not and the Prospectus will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, except that the foregoing does not apply to statements or omissions in any such document based upon written information furnished to the Corporation by any Underwriter specifically for use therein. (c) The documents incorporated by reference in the Prospectus, at the time they were filed with the Commission, conformed in all material respects to the requirements of the 1934 Act and the rules and regulations of the Commission thereunder (the "1934 Act Regulations"), and, when read together with the other information in the Prospectus, do not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and any documents deemed to be incorporated by reference in the Prospectus will, when they are filed with the Commission, comply in all material respects with the requirements of the 1934 Act and the 1934 Act Regulations, and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they are made, not misleading. (d) The compliance by the Corporation with all of the provisions of this Agreement and the consummation of the transactions herein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Corporation or any of its Principal Subsidiaries (as defined below) is a party or by which any of them or their respective property is bound or to which any of their property or assets is subject, nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or By-Laws of the Corporation or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Corporation or its Principal Subsidiaries or any of their respective property; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the consummation by the Corporation of the transactions contemplated by this Agreement, except for the registration under the 1933 Act of the Notes and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters. (e) Each of PanEnergy Corp, Texas Eastern Transmission Corporation and Algonquin Gas Transmission Company, each a Delaware corporation (and herein called a "Principal Subsidiary"), is a direct or indirect wholly-owned subsidiary of the Corporation.

Appears in 1 contract

Samples: Underwriting Agreement (Duke Capital Financing Trust Vi)

Representations and Warranties of the Corporation. The Corporation represents and warrants to, and agrees with, the several ~~Underwriters~~ Underwriters, the Forward Purchaser and the Forward Seller that: : (a) ~~A registration~~ Registration statement (No. 333-191462), including a prospectus, relating to the ~~Notes~~ Shares and certain other securities has been filed with the Securities and Exchange Commission ("the “Commission"”) under the Securities Act of ~~1933~~ 1933, as amended (the "“1933 Act"”). Such registration statement and any post-effective amendment thereto, each in the form heretofore delivered to you, ~~and, excluding exhibits thereto but including all documents incorporated by reference in~~ became effective upon filing with the ~~prospectus contained therein,~~ Commission pursuant to ~~you for each~~ Rule 462 of the ~~other Underwriters, have been declared effective by~~ rules and regulations of the Commission ~~in such form~~under the 1933 Act (the “1933 Act Regulations”), and no stop order suspending the effectiveness of such registration statement has been issued and no proceeding for that purpose or pursuant to Section 8A of the 1933 Act has been initiated or threatened by the Commission (if prepared, any preliminary prospectus supplement specifically relating to the Shares immediately prior to the Applicable Time included in such registration statement or filed with the Commission pursuant to Rule ~~424(a~~424(b) of the ~~rules and regulations of the Commission under the~~ 1933 Act Regulations being hereinafter called a "“Preliminary Prospectus"”); the ~~various parts~~ term “Registration Statement” means the registration statement as deemed revised pursuant to Rule 430B(f)(1) of the 1933 Act Regulations on the date of such registration statement’s effectiveness for purposes of Section 11 of the 1933 Act, as such section applies to the Corporation and the Underwriters for the Shares pursuant to Rule 430B(f)(2) of the 1933 Act Regulations (the “Effective Date”), including all exhibits thereto and including the documents incorporated by reference in the prospectus contained in the ~~registration statement~~ Registration Statement at the time such part of the ~~registration statement~~ Registration Statement became effective~~, each as amended~~ ; the term “Base Prospectus” means the prospectus filed with the Commission on the date hereof by the Corporation; and the term “Prospectus” means the Base Prospectus together with the prospectus supplement specifically relating to the Shares prepared in accordance with the provisions of Rule 430B and promptly filed after execution and delivery of this Agreement pursuant to Rule 430B or Rule 424(b) of the 1933 Act Regulations; any information included in such Prospectus that was omitted from the Registration Statement at the time ~~such~~ it became effective but that is deemed to be a part of ~~the~~ and included in such registration statement ~~became effective, being hereinafter called the "Registration Statement"; and the final prospectus relating to the Notes, in the form first filed~~ pursuant to Rule ~~424(b) under the 1933 Act, being hereinafter called the "Prospectus";~~ 430B is referred to as “Rule 430B Information;” and any reference herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein, as of the date of such Preliminary Prospectus or Prospectus, as the case may be; any reference to any amendment or supplement to any Preliminary Prospectus or Prospectus shall be deemed to refer to and include any documents filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended (the "1934 Act"), and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Corporation filed pursuant to Section 13(a) or 15(d) of the 1934 Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement).,

Appears in 1 contract

Representations and Warranties of the Corporation. The Corporation represents and warrants to, and agrees with, the several Underwriters that: : (a) A registration statement (No. 333- , which also constitutes a post- effective amendment to a previous registration statement No. 333- 52204), including a combined prospectus, relating to the ~~Notes~~ Shares and certain other securities has been filed with the Securities and Exchange Commission ("Commission") under the Securities Act of ~~1933~~ 1933, as amended (the "1933 Act"). Such registration statement and any ~~post-~~post- effective amendment thereto, each in the form heretofore delivered to you, and, excluding exhibits thereto but including all documents incorporated by reference in the prospectus contained therein, ~~to you~~ for each of the other Underwriters, have been declared effective by the Commission in such form, and no stop order suspending the effectiveness of such registration statement has been issued and no proceeding for that purpose has been initiated or threatened by the Commission (any preliminary prospectus included in such registration statement or filed with the Commission pursuant to Rule 424(a) of the rules and regulations of the Commission under the 1933 Act ("1933 Act Regulations") being hereinafter called a "Preliminary Prospectus"; the various parts of such registration statement, including all exhibits thereto and including the documents incorporated by reference in the prospectus contained in the registration statement at the time such part of the registration statement became effective, each as amended at the time such part of the registration statement became effective, being hereinafter called the "Registration Statement"; and the final prospectus relating to the ~~Notes~~Shares, in the form first filed pursuant to Rule 424(b) under the 1933 ~~Act~~Act Regulations, being hereinafter called the "Prospectus"; and any reference herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein, as of the date of such Preliminary Prospectus or Prospectus, as the case may be; any reference to any amendment or supplement to any Preliminary Prospectus or Prospectus shall be deemed to refer to and include any documents filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended (the "1934 Act"), and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Corporation filed pursuant to Section 13(a) or 15(d) of the 1934 Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement). (b) The Registration Statement conforms and the Prospectus will conform in all material respects to the requirements of the 1933 Act and the 1933 Act Regulations, and the Registration Statement does not and the Prospectus will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the Corporation makes no warranty or representation to the Underwriters with respect to any statements or omissions made in reliance upon and in conformity with written information furnished to the Corporation by any Underwriter specifically for use therein. (c) The documents incorporated by reference in the Prospectus, at the time they were filed with the Commission, complied in all material respects with the requirements of the 1934 Act and the rules and regulations of the Commission thereunder (the "1934 Act Regulations"), and, when read together with the other information in the Prospectus, do not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and any documents deemed to be incorporated by reference in the Prospectus will, when they are filed with the Commission, comply in all material respects with the requirements of the 1934 Act and the 1934 Act Regulations, and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the Corporation makes no warranty or representation to the Underwriters with respect to any statements or omissions made in reliance upon and in conformity with written information furnished to the Corporation by any Underwriter specifically for use therein. (d) The compliance by the Corporation with all of the provisions of this Agreement has been duly authorized by all necessary corporate action and the consummation of the transactions herein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Corporation or any of its Principal Subsidiaries (as hereinafter defined) is a party or by which any of them or their respective property is bound or to which any of their property or assets is subject that would have a material adverse effect on the business, financial condition or results of operations of the Corporation and its subsidiaries, taken as a whole, nor will such action result in any violation of the provisions of the Restated Articles of Incorporation or By-Laws of the Corporation or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Corporation or its Principal Subsidiaries or any of their respective property that would have a material adverse effect on the business, financial condition or results of operations of the Corporation and its subsidiaries, taken as a whole; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the consummation by the Corporation of the transactions contemplated by this Agreement, except for authorization by the North Carolina Utilities Commission and The Public Service Commission of South Carolina and the registration under the 1933 Act of the Shares and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Shares by the Underwriters. (e) This Agreement has been duly authorized, executed and delivered by the Corporation. (f) The Shares have been duly authorized for issuance and sale to the Underwriters pursuant to this Agreement and, when issued and delivered by the Corporation pursuant to this Agreement against payment of the consideration set forth herein, will be validly issued, fully paid and nonassessable; no holder of the Shares will be subject to personal liability by reason of being such a holder; and the issuance of the Shares is not subject to the preemptive or other similar rights of any security holder of the Corporation. (g) Each of Duke Capital Corporation, PanEnergy Corp, Duke Energy Natural Gas Corporation and Texas Eastern Transmission Corporation, each a Delaware corporation (and herein called a "Principal Subsidiary"), is a direct or indirect wholly owned subsidiary of the Corporation.

Appears in 1 contract

Samples: Underwriting Agreement (Duke Energy Capital Trust V)

Representations and Warranties of the Corporation. ~~The Corporation represents and warrants to, and agrees with, the several Underwriters that:~~ (a) ~~A registration statement (No. )~~Each delivery of the Preliminary Prospectus, ~~including~~ the Prospectus, the Preliminary U.S. Placement Memorandum, the U.S. Placement Memorandum and any Supplementary Material pursuant to Section 3 above shall constitute a ~~prospectus, relating~~ representation and warranty to the ~~Notes has been filed with~~ Agents by the ~~Securities~~ Corporation (and ~~Exchange Commission~~ the Corporation hereby acknowledges that the Agents are relying on such representations and warranties in entering into this Agreement) that: (~~"Commission"~~i) ~~under~~ all of the ~~Securities Act of 1933~~ information and statements (except information and statements relating solely to the ~~"1933 Act"). Such registration statement~~ Agents and ~~any post-effective amendment thereto, each~~ furnished by them in writing expressly for inclusion in the ~~form heretofore delivered to you, and, excluding exhibits thereto but including all documents incorporated by reference~~ applicable document) contained in the prospectus contained therein, to you for each of the other Underwriters, have been declared effective by the Commission in such form, and no stop order suspending the effectiveness of such registration statement has been issued and no proceeding for that purpose has been initiated or threatened by the Commission (any preliminary prospectus included in such registration statement or filed with the Commission pursuant to Rule 424(a) of the rules and regulations of the Commission under the 1933 Act being hereinafter called a "Preliminary Prospectus"; , the ~~various parts of such registration statement~~Prospectus, ~~including all exhibits thereto and including~~ the Preliminary U.S. Placement Memorandum, the U.S. Placement Memorandum or any Supplementary Material, as applicable, including, without limitation, the documents incorporated by reference in the prospectus contained in the registration statement at the time such part of the registration statement became effective, each as amended at the time such part of the registration statement became effective, being hereinafter called the "Registration Statement"; Preliminary Prospectus and the final prospectus relating to the Notes, in the form first filed pursuant to Rule 424(b) under the 1933 Act, being hereinafter called the "Prospectus"; and any reference herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein, as of the date of such Preliminary Prospectus or Prospectus, as the case may be: (A) are at the respective dates of such documents, true and correct in all material respects; (B) contain no misrepresentation; and (C) constitute full, true and plain disclosure of all material facts relating to the Corporation and the Offered Securities and the Warrant Shares; (ii) the Preliminary Prospectus, the Prospectus, or any Supplementary Material, as applicable, including, without limitation, the documents incorporated by reference ~~to any amendment or supplement to any~~ in the Preliminary Prospectus ~~or Prospectus shall be deemed to refer to~~ and ~~include any documents filed after~~ the ~~date of such Preliminary Prospectus or~~ Prospectus, as the case may be, comply in all material respects with the Applicable Securities Laws, including without limitation NI 44-101, and the Preliminary U.S. Placement Memorandum and the U.S. Placement Memorandum and, to the extent applicable, any related Supplementary Material, each comply as to form and content in all material respects with the U.S. Securities Act and applicable state securities laws; and (iii) except as is disclosed in the Disclosure Record, there has been no intervening material change (actual, proposed or prospective, whether financial or otherwise), from the date of the Preliminary Prospectus, the Prospectus, the Preliminary U.S. Placement Memorandum, the U.S. Placement Memorandum and any Supplementary Material to the time of delivery thereof, in the business, operations, material contracts, revenues, capital, properties, assets, liabilities (absolute, accrued, contingent or otherwise), condition (financial or otherwise) or results of operations of the Corporation. (b) In addition to the representations and warranties contained in subsection 6(a) hereof, the Corporation represents and warrants to, and covenants with, the each of the Agents, and acknowledges that the Agents are relying upon such representations, warranties and covenants in entering into this Agreement, that: (i) the Corporation and each of the Subsidiaries, are duly incorporated, continued or amalgamated and validly existing and in good standing under the ~~Securities Exchange Act~~ laws of ~~1934~~the jurisdiction in which they were incorporated, ~~as amended (the "1934 Act"), and incorporated by reference in such Preliminary Prospectus~~ continued or ~~Prospectus~~amalgamated or otherwise existing, as the case may be, have all requisite corporate power, authority and capacity to own, lease or operate their properties and assets as described in the Prospectus and the Disclosure Record and no steps or proceedings have been taken by any person, voluntary or otherwise, requiring or authorizing its dissolution or winding up , and the Corporation has all requisite corporate power and authority to enter into this Agreement and to carry out its obligations hereunder; (ii) the Corporation is the direct or indirect beneficial holder of100% of the issued and outstanding securities of each of: (i) BG Explorations EOOD; (ii) Park Place Energy Turkey Limited; (iii) Park Place Energy, Corp.; and (iv) Park Place Energy (Bermuda) Limited (individually, each a "Subsidiary" and collectively the "Subsidiaries") in each case, free and clear of all mortgages, charges, pledges, security interests, encumbrances, claims or demands whatsoever other than Permitted Encumbrances and no person or other entity has any ~~reference~~ agreement, option, right or privilege (whether pre-emptive or contractual) to purchase or receive (or capable of becoming an agreement or a right to purchase or receive) from the Corporation or any ~~amendment~~ of the Subsidiaries any issued or unissued securities of the Subsidiaries;‌ (iii) the Corporation and each of the Subsidiaries, are duly registered and qualified to carry on business and are validly existing under the laws of each jurisdiction in which they carry on business; (iv) other than the Subsidiaries, the Corporation does not have any subsidiaries, the Corporation has no shareholdings in any other corporation or business organization, is not an "affiliate" or a "holding corporation" of any other body corporate (within the meaning of the BCBCA), and is not a partner of any partnerships or limited partnerships;‌ (v) the Corporation and each of the Subsidiaries have conducted and are conducting their business in compliance in all material respects with all applicable laws, rules and regulations and, in particular, all applicable licensing and environmental legislation, regulations or by-laws or other lawful requirement of any governmental or regulatory bodies applicable to the ~~Registration Statement shall be deemed~~ Corporation and each of the Subsidiaries of each jurisdiction in which the Corporation and each of the Subsidiaries carry on business and the Corporation and each of the Subsidiaries hold all material licences, registrations, permits and qualifications in all jurisdictions in which the Corporation and each of the Subsidiaries carry on business which are necessary or desirable to ~~refer to and include any annual report~~ carry on the business of the Corporation ~~filed pursuant~~ and each of the Subsidiaries, as now conducted and as presently proposed to ~~Section 13(a~~be conducted in the Prospectus, except where the failure to so conduct its business or to hold such licences, registrations, permits or qualifications, would not have a material adverse effect on the Corporation and the Subsidiaries (taken as a whole) and all such licenses, registrations, permits and qualifications are valid and existing and in good standing and none of such licenses, registrations, permits or qualifications contains any burdensome term, provision, condition or limitation which has or is likely to have any material adverse effect on the business of the Corporation and the Subsidiaries (taken as a whole) as now conducted or as proposed to be conducted and the Corporation is not aware of any legislation, regulation, rule or lawful requirements presently in force or proposed to be brought into force which the Corporation anticipates that the Corporation or any of its Subsidiaries will be unable to comply with without materially adversely affecting the Corporation or its Subsidiaries (taken as a whole); (vi) neither the Corporation nor any of the Subsidiaries is in default or breach of, and the execution and delivery of, and the performance of and compliance with the terms of this Agreement, the Warrant Indenture or any of the transactions contemplated hereby or thereby, does not and will not result in any breach of, or be in conflict with or constitute a default under, or create a state of facts which, after notice or lapse of time, or both, would result in a breach of or constitute a default under: (i) any term or provision of the articles, by laws or resolutions of the directors (or any committee thereof) or ~~15(d~~shareholders of the Corporation or any of the Subsidiaries; (ii) any mortgage, note, indenture, contract, agreement (written or oral), instrument, lease or other document to which the Corporation or any of the Subsidiaries are a party or by which it is bound; or (iii) any law, judgment, decree, order, statute, rule or regulation applicable to the Corporation or any of the Subsidiaries or their properties or assets; which default or breach might reasonably be expected to materially adversely affect the business, operations, capital or condition (financial or otherwise) of the ~~1934 Act after~~ Corporation and the ~~effective date~~ Subsidiaries (taken as a whole) or would impair the ability of the ~~Registration Statement~~ Corporation or any of the Subsidiaries to consummate the transactions contemplated hereby or thereby or to duly observe and perform any of its covenants or obligations contained in this Agreement and the Warrant Indenture; (vii) the Corporation has full corporate capacity, power and authority to enter into this Agreement and the Warrant Indenture and to perform its obligations set out herein and therein (including, without limitation, to issue the Offered Securities and Warrant Shares), and this Agreement has been, and the Warrant Indenture will, on the Closing Date, be, duly authorized, executed and delivered by the Corporation and this Agreement is, and the Warrant Indenture will, on the Closing Date, constitute, legal, valid and binding obligations of the Corporation enforceable against the Corporation in accordance with their terms except that ~~is incorporated by reference~~ the validity, binding effect and enforceability are subject to the qualification that such validity, binding effect and enforceability may be limited by: (A) bankruptcy, insolvency, moratorium, reorganization or other similar laws of general application affecting creditors' rights; (B) equitable remedies, including the remedies of specific performance and injunctive relief, are available only in the ~~Registration Statement~~discretion of the applicable court; (C) the equitable or statutory powers of the courts in Canada to stay proceedings before them and the execution of judgments; (D) rights to indemnity, contribution and waiver hereunder may be limited or unavailable under applicable law; (E) the applicable laws regarding limitations of actions; (F) the enforceability of provisions which purport to sever any provision which is prohibited or unenforceable under applicable law without affecting the enforceability or validity of the remainder of such document would be determined only in the discretion of the court; (G) the enforceability of the provisions exculpating a party from liability or duty otherwise owed by it to another and certain remedial terms and waivers of equitable defences provided for in such agreement or other document may be limited under applicable law; (H) the requirement of a court that the discretionary powers expressed to be conferred on any party to such agreement, indenture or other document be exercised reasonably and in good faith notwithstanding any provisions to the contrary and the possibility that such court may decline to accept as conclusive factual or legal determinations described as conclusive therein; and (I) the fact that costs of and incidental to all proceedings authorized to be taken in court are in the discretion of the court and that the court has full power to determine by whom and to what extent such costs shall be paid; (viii) there has not been any reportable event (within the meaning of Section 4.11 of NI 51-102) with the Corporation's auditor; (ix) based upon representations made by the Corporation's auditor to the Corporation, the Corporation's auditor are independent chartered accountants with respect to the Corporation, as required by Applicable Securities Laws; (x) there has not been any material change in the capital, assets, liabilities or obligations (absolute, contingent or otherwise) of the Corporation from the position set forth in the Financial Statements which has not been disclosed in the Prospectus and there has not been any adverse material change in the business, operations, capital or condition (financial or otherwise) or results of the operations of the Corporation since March 31, 2022 which has not been disclosed in the Prospectus; and since that date, other than as a result of changes in commodity prices, there have been no material facts, transactions, events or occurrences which could materially adversely affect the capital, assets, liabilities (absolute, accrued, contingent or otherwise)., business, operations, material contracts or condition (financial or otherwise) or results of the operations of the Corporation and the Subsidiaries (taken as a whole) which have not been disclosed in the Prospectus; (xi) the Financial Statements, except for the unaudited consolidated financial statements of the Corporation for the three months ended March 31, 2022, fairly present, in accordance with U.S. GAAP, consistently applied, the financial position and condition of the Corporation on a consolidated basis at the dates thereof and the results of the operations of the Corporation on a consolidated basis for the periods then ended and reflect all assets, liabilities and obligations (absolute, accrued, contingent or otherwise) of the Corporation as at the dates thereof which are required to be disclosed in accordance with generally accepted accounting principles; (xii) the unaudited consolidated financial statements of the Corporation for the three months ended March 31, 2022, fairly present, in accordance with generally accepted accounting principles in Canada, consistently applied, the financial position and condition of the Corporation on a consolidated basis at the dates thereof and the results of the operations of the Corporation on a consolidated basis for the periods then ended and reflect all assets, liabilities and obligations (absolute, accrued, contingent or otherwise) of the Corporation as at the dates thereof which are required to be disclosed in accordance with generally accepted accounting principles; (xiii) the Corporation maintains a system of "internal control over financial reporting" (as defined in NI 52-109) that provides reasonable assurance regarding the reliability of financial reporting and the preparation of the Corporation's consolidated financial statements for external purposes in accordance with IFRS; (xiv) the Corporation maintains "disclosure controls and procedures" (as defined in NI 52-109) that provide reasonable assurance that: (A) material information relating to the Corporation is made known to the Corporation's president and chief executive officer and chief financial officer by others within the Corporation; and

Appears in 1 contract

Samples: Agency Agreement

Representations and Warranties of the Corporation. The Corporation represents and warrants ~~to,~~ to and agrees ~~with,~~ with the ~~several~~ Underwriters that: : (a) ~~A registration statement~~ it is a not-for-profit corporation duly created and validly existing and in good standing under Chapter 617, Florida Statutes and has all necessary licenses and permits to conduct its business as described in the Preliminary Offering Statement and the Offering Statement and to act as lessee and sublessee under the Series 2005A-1 Ground Lease, the Series 2006 Ground Lease and the Series 2007A Ground Lease (~~No.~~ collectively, the “Ground Leases”) and as lessor in connection with the lease-purchase by the School Board of the Series 2005A Facilities, the Series 2006 Facilities and the Series 2007A Facilities (collectively, the “Facilities”), ; (b) both at the time of its acceptance hereof and at all times during the period from the date hereof up to and including a ~~prospectus, relating~~ date which is the later of (i) receipt of notice from the Manager pursuant to Section 3(c) hereof that the ~~Notes has been~~ Offering Statement is no longer required to be delivered under the Rule or (ii) 90 days after the date of the Closing (or 25 days after the date of the Closing if the Offering Statement is filed with the ~~Securities~~ MSRB in electronic format at or prior to Closing), the statements and Exchange Commission ("Commission") under the Securities Act of 1933 (the "1933 Act"). Such registration statement and any post-effective amendment thereto, each in the form heretofore delivered to you, and, excluding exhibits thereto but including all documents incorporated by reference in the prospectus contained therein, to you for each of the other Underwriters, have been declared effective by the Commission in such form, and no stop order suspending the effectiveness of such registration statement has been issued and no proceeding for that purpose has been initiated or threatened by the Commission (any preliminary prospectus included in such registration statement or filed with the Commission pursuant to Rule 424(a) of the rules and regulations of the Commission under the 1933 Act being hereinafter called a "Preliminary Prospectus"; the various parts of such registration statement, including all exhibits thereto and including the documents incorporated by reference in the prospectus information contained in the ~~registration statement at~~ Offering Statement with respect to the ~~time such part~~ Corporation are and are expected to be, to the best of its knowledge after due inquiry, true, correct and complete in all material respects and the Offering Statement, to the knowledge of the ~~registration statement became effective~~Corporation after due inquiry, each as amended at the time such part of the registration statement became effective, being hereinafter called the "Registration Statement"; and the final prospectus relating to the Notes, in the form first filed pursuant to Rule 424(b) under the 1933 Act, being hereinafter called the "Prospectus"; and any reference herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein, does not as of the date of ~~such Preliminary Prospectus or Prospectus~~acceptance hereof and is not expected to, as at any time during the ~~case may be; any reference to any amendment or supplement to any Preliminary Prospectus or Prospectus shall be deemed to refer~~ period from the date hereof up to and ~~include any documents filed~~ including the later of (i) receipt of notice from the Manager pursuant to Section 3(c) hereof that the Offering Statement is no longer required to be delivered under the Rule or (ii) 90 days after the date of the Closing (or 25 days after the date of the Closing if the Offering Statement is filed with the MSRB in electronic format at or prior to Closing), contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or which is necessary to make the statements and information therein, in light of the circumstances under which they were made, not misleading in any material respect; (c) if the Offering Statement is supplemented or amended pursuant to Section 10 hereof, at the time of each supplement or amendment thereto and (unless subsequently again supplemented or amended pursuant to Section 10 hereof) at all times during the period from the date of such ~~Preliminary Prospectus~~ supplement or ~~Prospectus~~amendment to and including a date which is the later of (i) receipt of notice from the Manager pursuant to Section 3(c) hereof that the Offering Statement is no longer required to be delivered under the Rule or (ii) 90 days after the date of the Closing (or 25 days after the date of the Closing if the Offering Statement is filed with the MSRB in electronic format at or prior to Closing), the Offering Statement as so supplemented or amended will not contain any untrue statement of a material fact or omit any statement or information that is necessary to make the statements contained therein, in the light of the circumstances under which they were made, not misleading; (d) the Corporation will cooperate with the Underwriters and their counsel, and use its best efforts to cause the School Board to cooperate with the Underwriters and their counsel, in taking all necessary action to qualify the Series 2015A Certificates for offer and sale under the securities or “blue sky” laws of such jurisdictions as the ~~case~~ Underwriters may bereasonably request; provided however that neither the Corporation nor the School Board will be required to execute a special or general consent to service of process, pay any fee or qualify as a foreign corporation in connection with such qualification; (e) the execution and delivery by the Corporation of this Certificate Purchase Agreement, the Series 2015A Trust Agreement, the Series 2005A-1 Lease, the Series 2006 Lease and the Series 2007A Lease (such Leases hereinafter referred to collectively as the “Leases”), were duly approved by the Corporation’s Board of Directors by Resolution No. 90-1 dated July 11, 1990, Resolution No. 97-3 dated March 18, 1997 and Resolution No. 14- dated December 9, 2014 of such board (collectively, the “Corporation Resolutions”), in complete conformity with the Articles of Incorporation and the By-Laws of the Corporation and Florida law; (f) the approval, execution and delivery of this Certificate Purchase Agreement, the Series 2015A Trust Agreement and the Leases, adoption of the Corporation Resolutions and compliance with the provisions thereof and hereof, under the ~~Securities Exchange Act~~ circumstances contemplated thereby and hereby, do not and will not conflict with, constitute a breach of ~~1934~~or default under, ~~as amended (~~or result in the ~~"1934 Act"), and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; and~~ creation of a lien on any ~~reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report~~ property of the Corporation ~~filed~~ (except as contemplated therein) pursuant to ~~Section 13(a)~~ applicable law or ~~15(d)~~ any indenture, bond resolution, deed of trust, mortgage, agreement or other instrument to which the Corporation is a party, except as described in the Offering Statement, or conflict with or violate any applicable law, administrative rule, regulation, judgment, court order or consent decree to which the Corporation is subject which in any such event would have a material adverse effect on the prepayment of the ~~1934 Act after~~ Basic Lease Payments represented by the ~~effective date~~ portion of the ~~Registration Statement that is incorporated by reference~~ Series 2005A Certificates, the portion of the Series 2006 Certificates and the portion of the Series 2007A Certificates to be prepaid upon issuance of the Series 2015A Certificates (collectively, the “Refunded Certificates”), issuance of the Series 2015A Certificates or any of the transactions contemplated thereby; (g) except as disclosed in the ~~Registration~~ Offering Statement, there is no claim, action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental agency, or public board or body, pending or, to the best of its knowledge, threatened (i) contesting the corporate existence or powers of the Corporation or the titles of the officers of the Corporation to their respective offices, (ii) seeking to prohibit, restrain or enjoin the collection of moneys under the Leases, the prepayment of the Basic Lease Payments represented by the Refunded Certificates or the application of the proceeds of the Series 2015A Certificates in the manner contemplated herein and in the Offering Statement, wherein an unfavorable decision, ruling or finding would materially adversely affect the financial position of the Corporation or the operation of its facilities or the validity or enforceability of the Series 2015A Certificates, the Series 2005A Trust Agreement, the Series 2006 Trust Agreement and the Series 2007A Trust Agreement or the Series 2015A Trust Agreement (such Trust Agreements hereinafter referred to collectively as the “Trust Agreements”), the Ground Leases, the Leases, the Series 2005A Assignment Agreement, the Series 2006 Assignment Agreement or the Series 2007A Assignment Agreement (such Assignment Agreements hereinafter referred to collectively as the “Assignment Agreements”), the Corporation Resolutions or this Certificate Purchase Agreement (collectively, the “Corporation Documents”), (iii) contesting or affecting the validity of any of the Corporation Documents, (iv) contesting in any way the completeness or accuracy of the Offering Statement (nor, to the best knowledge of the Corporation is there any basis therefor), or (v) challenging the right of the Corporation to act as lessee or sublessee or as sublessor under any of the Ground Leases or as lessor in connection with the lease-purchase by the School Board of any of the Facilities or to prepay any of the Refunded Certificates; (h) when duly executed and delivered at or prior to the Closing in accordance with the provisions of this Certificate Purchase Agreement, the Corporation Documents will have been duly authorized, executed and delivered by the Corporation and will constitute legal, valid and binding agreements of the Corporation enforceable in accordance with their terms, subject to applicable bankruptcy, moratorium or similar laws relating to the enforcement of creditors’ rights generally and to the application of general principles of equity; (i) when duly executed and delivered at the Closing in accordance with the provisions of this Certificate Purchase Agreement, the Series 2015A Certificates will constitute evidence of legal, valid and binding undivided proportionate interests in the Corporation’s rights to receive Basic Lease Payments pursuant to the (a) Series 2005A-1 Lease, on a parity with the Series 2005A Certificates remaining Outstanding after issuance of the Series 2015A Certificates and allocable to the Series 2005A-1 Lease, (b) Series 2006 Lease, on a parity with the Series 2006 Certificates remaining Outstanding after issuance of the Series 2015A Certificates and (c) Series 2007A Lease, on a parity with the Series 2007A Certificates remaining Outstanding after issuance of the Series 2015A Certificates, enforceable in accordance with their terms, subject to applicable bankruptcy, moratorium or similar laws relating to the enforcement of creditors’ rights generally and to the application of general principles of equity; (j) except as otherwise described in the Offering Statement and except as may be required by the “blue sky” or other securities laws of any of the jurisdictions where the Series 2015A Certificates may be sold, the Corporation has received and there remains currently in full force and effect, or will receive prior to the delivery of the Series 2015A Certificates, all governmental consents and approvals that would constitute a condition precedent to, or the absence of which would materially adversely affect, the performance by the Corporation of its obligations hereunder or under any of the Corporation Documents; and (k) the Corporation acknowledges and agrees that (i) the purchase and sale of the Series 2015A Certificates pursuant to this Certificate Purchase Agreement is an arm’s- length commercial transaction among the Corporation, the School Board and the Underwriters, (ii) in connection with such transaction and with the discussions, undertakings and procedures leading up to the consummation of such transaction, the Manager is and has been acting solely as a principal and not as a municipal advisor, financial advisor, agent or fiduciary of the Corporation and the Manager has financial and other interests that differ from those of the Corporation, (iii) the Manager has not assumed an advisory or fiduciary responsibility in favor of the Corporation with respect to any of the transactions contemplated hereby or the discussions, undertakings and procedures leading thereto (irrespective of whether the Manager or any of the Underwriters have provided other services or is currently providing other services to the Corporation on other matters) and the Underwriters have no obligation to the Corporation with respect to any of the transactions contemplated hereby except the obligations expressly set forth in this Certificate Purchase Agreement and (iv) the Corporation has consulted its own legal, financial, accounting, tax and other advisors to the extent it has deemed appropriate and has in fact retained advisors, as set forth in the Offering Statement, to provide legal, financial, accounting, tax and other consultation and advice in connection with the issuance of the Series 2015A Certificates.

Appears in 1 contract

Representations and Warranties of the Corporation. The Corporation represents and warrants to, and agrees with, the several Underwriters that: : (a) A registration statement (No. 333- , which also constitutes a post- effective amendment to two previous registration statements Nos. 333- 14209 and 333-79065), including a combined prospectus, relating to the Notes has been filed with the Securities and Exchange Commission ("Commission") under the Securities Act of 1933 (the "1933 Act"). Such registration statement and any post-effective amendment thereto, each in the form heretofore delivered to you, and, excluding exhibits thereto but including all documents incorporated by reference in the prospectus contained therein, ~~to you~~ for each of the other Underwriters, have been declared effective by the Commission in such form, and no stop order suspending the effectiveness of such registration statement has been issued and no proceeding for that purpose has been initiated or threatened by the Commission (any preliminary prospectus included in such registration statement or filed with the Commission pursuant to Rule 424(a) of the rules and regulations of the Commission under the 1933 Act being hereinafter called a "Preliminary Prospectus"; the various parts of such registration statement, including all exhibits thereto and including the documents incorporated by reference in the prospectus contained in the registration statement at the time such part of the registration statement became effective, each as amended at the time such part of the registration statement became effective, being hereinafter called the "Registration Statement"; and the final prospectus relating to the Notes, in the form first filed pursuant to Rule 424(b) under the 1933 Act, being hereinafter called the "Prospectus"; and any reference herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein, as of the date of such Preliminary Prospectus or Prospectus, as the case may be; any reference to any amendment or supplement to any Preliminary Prospectus or Prospectus shall be deemed to refer to and include any documents filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended (the "1934 Act"), and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Corporation filed pursuant to Section 13(a) or 15(d) of the 1934 Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement). (b) The Registration Statement conforms and the Prospectus will conform in all material respects to the requirements of the 1933 Act and the rules and regulations thereunder ("1933 Act Regulations"), and the Registration Statement does not and the Prospectus will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, except that the Corporation makes no warranty or representation to the Underwriters with respect to any statements or omissions made in reliance upon and in conformity with written information furnished to the Corporation by any Underwriter specifically for use therein or any information set forth in the Prospectus under the caption "Description of the Series Senior Notes--Book-Entry Only Issuance--The Depository Trust Company." (c) The documents incorporated by reference in the Prospectus, at the time they were filed with the Commission, complied in all material respects with the requirements of the 1934 Act and the rules and regulations of the Commission thereunder (the "1934 Act Regulations"), and, when read together with the other information in the Prospectus, do not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and any documents deemed to be incorporated by reference in the Prospectus will, when they are filed with the Commission, comply in all material respects with the requirements of the 1934 Act and the 1934 Act Regulations, and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they are made, not misleading, except that the Corporation makes no warranty or representation to the Underwriters with respect to any statements or omissions made in reliance upon and in conformity with written information furnished to the Corporation by any Underwriter specifically for use therein or any information set forth in the Prospectus under the caption "Description of the Series Senior Notes--Book-Entry Only Issuance--The Depository Trust Company." (d) The compliance by the Corporation with all of the provisions of this Agreement and the consummation of the transactions herein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Corporation or any of its Principal Subsidiaries (as hereinafter defined) is a party or by which any of them or their respective property is bound or to which any of their property or assets is subject, nor will such action result in any violation of the provisions of the Restated Articles of Incorporation or By-Laws of the Corporation or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Corporation or its Principal Subsidiaries or any of their respective property; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the consummation by the Corporation of the transactions contemplated by this Agreement, except for authorization by the North Carolina Utilities Commission and The Public Service Commission of South Carolina and the registration under the 1933 Act of the Notes and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters. (e) Each of Duke Capital Corporation, PanEnergy Corp, Duke Energy Natural Gas Corporation and Texas Eastern Transmission Corporation, each a Delaware corporation (and herein called a "Principal Subsidiary"), is a direct or indirect wholly-owned subsidiary of the Corporation.

Appears in 1 contract

Samples: Underwriting Agreement (Duke Energy Capital Trust V)

Representations and Warranties of the Corporation. The Corporation represents and warrants to, and agrees with, the several Underwriters that: : (a) ~~A registration~~ Registration statement (No. 333-169633), including a prospectus, relating to the Notes and certain other securities has been filed with the Securities and Exchange Commission ("the “Commission"”) under the Securities Act of ~~1933~~ 1933, as amended (the "“1933 Act"”). Such registration statement and any post-effective amendment thereto, each in the form heretofore delivered to you, ~~and, excluding exhibits thereto but including all documents incorporated by reference in~~ became effective upon filing with the ~~prospectus contained therein,~~ Commission pursuant to ~~you for each~~ Rule 462 of the ~~other Underwriters, have been declared effective by~~ rules and regulations of the Commission ~~in such form~~under the 1933 Act (the “1933 Act Regulations”), and no stop order suspending the effectiveness of such registration statement has been issued and no proceeding for that purpose or pursuant to Section 8A of the 1933 Act has been initiated or threatened by the Commission (if prepared, any preliminary prospectus supplement specifically relating to the Notes immediately prior to the Applicable Time (as defined below) included in such registration statement or filed with the Commission pursuant to Rule ~~424(a~~424(b) of the ~~rules and regulations of the Commission under the~~ 1933 Act Regulations being hereinafter called a "“Preliminary Prospectus"”); the ~~various parts~~ term “Registration Statement” means the registration statement as deemed revised pursuant to Rule 430B(f)(1) of the 1933 Act Regulations on the date of such registration statement’s effectiveness for purposes of Section 11 of the 1933 Act, as such section applies to the Corporation and the Underwriters for the Notes pursuant to Rule 430B(f)(2) of the 1933 Act Regulations (the “Effective Date”), including all exhibits thereto and including the documents incorporated by reference in the prospectus contained in the ~~registration statement~~ Registration Statement at the time such part of the ~~registration statement~~ Registration Statement became effective~~, each as amended~~ ; the term “Base Prospectus” means the prospectus filed with the Commission on the date hereof by the Corporation; and the term “Prospectus” means the Base Prospectus together with the prospectus supplement specifically relating to the Notes prepared in accordance with the provisions of Rule 430B and promptly filed after execution and delivery of this Agreement pursuant to Rule 430B or Rule 424(b) of the 1933 Act Regulations; any information included in such Prospectus that was omitted from the Registration Statement at the time ~~such~~ it became effective but that is deemed to be a part of ~~the~~ and included in such registration statement ~~became effective, being hereinafter called the "Registration Statement"; and the final prospectus relating to the Notes, in the form first filed~~ pursuant to Rule ~~424(b) under the 1933 Act, being hereinafter called the "Prospectus";~~ 430B is referred to as “Rule 430B Information;” and any reference herein to any Registration Statement, Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference ~~therein, as of~~ therein prior to the date ~~of such Preliminary Prospectus or Prospectus, as the case may be~~hereof; any reference to any amendment or supplement to any Preliminary Prospectus or Prospectus shall be deemed to refer to and include any documents filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended (the "“1934 Act"”), and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Corporation filed pursuant to Section 13(a) or 15(d) of the 1934 Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement). For purposes of this Agreement, the term “Applicable Time” means 1:40 p.m. (New York City time) on the date hereof.

Appears in 1 contract

Representations and Warranties of the Corporation. The Corporation represents and warrants to, and agrees with, the several Underwriters that: (a) A registration statement (No. 333-14209, which also constitutes a post- effective amendment to a previous registration statement No. 333-02571), including a prospectus, relating to the Notes has been filed with the Securities and Exchange Commission ("Commission") under the Securities Act of 1933 (the "1933 Act"). Such registration statement and any post-effective amendment thereto, each in the form heretofore delivered to you, and, excluding exhibits thereto but including all documents incorporated by reference in the prospectus contained therein, ~~to you~~ for each of the other Underwriters, have been declared effective by the Commission in such form, and no stop order suspending the effectiveness of such registration statement has been issued and no proceeding for that purpose has been initiated or threatened by the Commission (any preliminary prospectus included in such registration statement or filed with the Commission pursuant to Rule 424(a) of the rules and regulations of the Commission under the 1933 Act being hereinafter called a "Preliminary Prospectus"; the various parts of such registration statement, including all exhibits thereto and including the documents incorporated by reference in the prospectus contained in the registration statement at the time such part of the registration statement became effective, each as amended at the time such part of the registration statement became effective, being hereinafter called the "Registration Statement"; and the final prospectus relating to the Notes, in the form first filed pursuant to Rule 424(b) under the 1933 Act, being hereinafter called the "Prospectus"; and any reference herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein, as of the date of such Preliminary Prospectus or Prospectus, as the case may be; any reference to any amendment or supplement to any Preliminary Prospectus or Prospectus shall be deemed to refer to and include any documents filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended (the "1934 Act"), and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Corporation filed pursuant to Section 13(a) or 15(d) of the 1934 Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement).

Appears in 1 contract

Representations and Warranties of the Corporation. The Corporation represents and warrants ~~to,~~ to and agrees ~~with,~~ with the ~~several~~ Underwriters that: : (a) ~~A registration statement~~ it is a not-for-profit corporation duly created and validly existing and in good standing under Chapter 617, Florida Statutes and has all necessary licenses and permits to conduct its business as described in the Preliminary Offering Statement and the Offering Statement and to act as lessee and sublessee under the Series 2006 Ground Lease and as lessor in connection with the lease-purchase by the School Board of the Series 2006- 1 Facilities; (~~No. ),~~ b) both at the time of its acceptance hereof and at all times during the period from the date hereof up to and including a ~~prospectus, relating~~ date which is the later of (i) receipt of notice from the Manager pursuant to Section 3(c) hereof that the ~~Notes has been~~ Offering Statement is no longer required to be delivered under the Rule or (ii) 90 days after the date of the Closing (or 25 days after the date of the Closing if the Offering Statement is filed with the ~~Securities~~ MSRB in electronic format at or prior to Closing), the statements and Exchange Commission ("Commission") under the Securities Act of 1933 (the "1933 Act"). Such registration statement and any post-effective amendment thereto, each in the form heretofore delivered to you, and, excluding exhibits thereto but including all documents incorporated by reference in the prospectus contained therein, to you for each of the other Underwriters, have been declared effective by the Commission in such form, and no stop order suspending the effectiveness of such registration statement has been issued and no proceeding for that purpose has been initiated or threatened by the Commission (any preliminary prospectus included in such registration statement or filed with the Commission pursuant to Rule 424(a) of the rules and regulations of the Commission under the 1933 Act being hereinafter called a "Preliminary Prospectus"; the various parts of such registration statement, including all exhibits thereto and including the documents incorporated by reference in the prospectus information contained in the ~~registration statement at~~ Offering Statement with respect to the ~~time such part~~ Corporation are and are expected to be, to the best of its knowledge after due inquiry, true, correct and complete in all material respects and the Offering Statement, to the knowledge of the ~~registration statement became effective~~Corporation after due inquiry, each as amended at the time such part of the registration statement became effective, being hereinafter called the "Registration Statement"; and the final prospectus relating to the Notes, in the form first filed pursuant to Rule 424(b) under the 1933 Act, being hereinafter called the "Prospectus"; and any reference herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein, does not as of the date of ~~such Preliminary Prospectus or Prospectus~~acceptance hereof and is not expected to, as at any time during the ~~case may be; any reference to any amendment or supplement to any Preliminary Prospectus or Prospectus shall be deemed to refer~~ period from the date hereof up to and ~~include any documents filed~~ including the later of (i) receipt of notice from the Manager pursuant to Section 3(c) hereof that the Offering Statement is no longer required to be delivered under the Rule or (ii) 90 days after the date of the Closing (or 25 days after the date of the Closing if the Offering Statement is filed with the MSRB in electronic format at or prior to Closing), contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or which is necessary to make the statements and information therein, in light of the circumstances under which they were made, not misleading in any material respect; (c) if the Offering Statement is supplemented or amended pursuant to Section 10 hereof, at the time of each supplement or amendment thereto and (unless subsequently again supplemented or amended pursuant to Section 10 hereof) at all times during the period from the date of such ~~Preliminary Prospectus~~ supplement or ~~Prospectus~~amendment to and including a date which is the later of (i) receipt of notice from the Manager pursuant to Section 3(c) hereof that the Offering Statement is no longer required to be delivered under the Rule or (ii) 90 days after the date of the Closing (or 25 days after the date of the Closing if the Offering Statement is filed with the MSRB in electronic format at or prior to Closing), the Offering Statement as so supplemented or amended will not contain any untrue statement of a material fact or omit any statement or information that is necessary to make the statements contained therein, in the light of the circumstances under which they were made, not misleading; (d) the Corporation will cooperate with the Underwriters and their counsel, and use its best efforts to cause the School Board to cooperate with the Underwriters and their counsel, in taking all necessary action to qualify the Series 2019B Certificates for offer and sale under the securities or “blue sky” laws of such jurisdictions as the ~~case~~ Underwriters may bereasonably request; provided however that neither the Corporation nor the School Board will be required to execute a special or general consent to service of process, pay any fee or qualify as a foreign corporation in connection with such qualification; (e) the execution and delivery by the Corporation of this Certificate Purchase Agreement, the Series 2019B Trust Agreement and the Series 2006-1 Lease were duly approved by the Corporation’s Board of Directors by Resolution No. 19- dated June 25, 2019 (the “Corporation Resolution”), in complete conformity with the Articles of Incorporation and the By-Laws of the Corporation and Florida law; (f) the approval, execution and delivery of this Certificate Purchase Agreement, the Series 2019B Trust Agreement and the Series 2006-1 Lease, adoption of the Corporation Resolution and compliance with the provisions thereof and hereof, under the ~~Securities Exchange Act~~ circumstances contemplated thereby and hereby, do not and will not conflict with, constitute a breach of ~~1934~~or default under, ~~as amended (~~or result in the ~~"1934 Act"), and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; and~~ creation of a lien on any ~~reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report~~ property of the Corporation ~~filed~~ (except as contemplated therein) pursuant to ~~Section 13(a)~~ applicable law or ~~15(d)~~ any indenture, bond resolution, deed of trust, mortgage, agreement or other instrument to which the Corporation is a party, except as described in the Offering Statement, or conflict with or violate any applicable law, administrative rule, regulation, judgment, court order or consent decree to which the Corporation is subject which in any such event would have a material adverse effect on the prepayment of the ~~1934 Act after~~ Basic Lease Payments represented by the ~~effective date~~ Series 2015C Certificates to be prepaid upon issuance of the ~~Registration Statement that is incorporated by reference~~ Series 2019B Certificates (collectively, the “Refunded Certificates”), issuance of the Series 2019B Certificates or any of the transactions contemplated thereby; (g) except as disclosed in the ~~Registration~~ Offering Statement, there is no claim, action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental agency, or public board or body, pending or, to the best of its knowledge, threatened (i) contesting the corporate existence or powers of the Corporation or the titles of the officers of the Corporation to their respective offices, (ii) seeking to prohibit, restrain or enjoin the collection of moneys under the Series 2006-1 Lease, the prepayment of the Basic Lease Payments represented by the Refunded Certificates or the application of the proceeds of the Series 2019B Certificates in the manner contemplated herein and in the Offering Statement, wherein an unfavorable decision, ruling or finding would materially adversely affect the financial position of the Corporation or the operation of its facilities or the validity or enforceability of the Series 2019B Certificates, the Series 2015C Trust Agreement or the Series 2019B Trust Agreement (such Trust Agreements hereinafter referred to collectively as the “Trust Agreements”), the Series 2006 Ground Lease, the Series 2006-1 Lease, the Series 2006 Assignment Agreement, the Corporation Resolution or this Certificate Purchase Agreement (collectively, the “Corporation Documents”), (iii) contesting or affecting the validity of any of the Corporation Documents, (iv) contesting in any way the completeness or accuracy of the Offering Statement (nor, to the best knowledge of the Corporation is there any basis therefor), or (v) challenging the right of the Corporation to act as lessee or sublessee or as sublessor under the Series 2006 Ground Lease or as lessor in connection with the lease-purchase by the School Board of any of the Series 2006-1 Facilities or to prepay any of the Refunded Certificates; (h) when duly executed and delivered at or prior to the Closing in accordance with the provisions of this Certificate Purchase Agreement, the Corporation Documents will have been duly authorized, executed and delivered by the Corporation and will constitute legal, valid and binding agreements of the Corporation enforceable in accordance with their terms, subject to applicable bankruptcy, moratorium or similar laws relating to the enforcement of creditors’ rights generally and to the application of general principles of equity; (i) when duly executed and delivered at the Closing in accordance with the provisions of this Certificate Purchase Agreement, the Series 2019B Certificates will constitute evidence of legal, valid and binding undivided proportionate interests in the Corporation’s rights to receive Basic Lease Payments pursuant to the Series 2006-1 Lease, on a parity with the Certificates of Participation, Series 2015A allocable to the Original Series 2006-1 Lease, enforceable in accordance with their terms, subject to applicable bankruptcy, moratorium or similar laws relating to the enforcement of creditors’ rights generally and to the application of general principles of equity; (j) except as otherwise described in the Offering Statement and except as may be required by the “blue sky” or other securities laws of any of the jurisdictions where the Series 2019B Certificates may be sold, the Corporation has received and there remains currently in full force and effect, or will receive prior to the delivery of the Series 2019B Certificates, all governmental consents and approvals that would constitute a condition precedent to, or the absence of which would materially adversely affect, the performance by the Corporation of its obligations hereunder or under any of the Corporation Documents; and (k) the Corporation acknowledges and agrees that (i) the purchase and sale of the Series 2019B Certificates pursuant to this Certificate Purchase Agreement is an arm’s- length commercial transaction among the Corporation, the School Board and the Underwriters, (ii) in connection with such transaction and with the discussions, undertakings and procedures leading up to the consummation of such transaction, the Manager is and has been acting solely as a principal and not as a municipal advisor, financial advisor, agent or fiduciary of the Corporation and the Manager has financial and other interests that differ from those of the Corporation, (iii) the Manager has not assumed an advisory or fiduciary responsibility in favor of the Corporation with respect to any of the transactions contemplated hereby or the discussions, undertakings and procedures leading thereto (irrespective of whether the Manager or any of the Underwriters have provided other services or is currently providing other services to the Corporation on other matters) and the Underwriters have no obligation to the Corporation with respect to any of the transactions contemplated hereby except the obligations expressly set forth in this Certificate Purchase Agreement and (iv) the Corporation has consulted its own legal, financial, accounting, tax and other advisors to the extent it has deemed appropriate and has in fact retained advisors, as set forth in the Offering Statement, to provide legal, financial, accounting, tax and other consultation and advice in connection with the issuance of the Series 2019B Certificates.

Appears in 1 contract

Representations and Warranties of the Corporation. The Corporation represents and warrants to, and agrees with, the several Underwriters that: : (a) A registration statement (No. 333- , which also constitutes a post-effective amendment to a previous registration statement No. 333-58820), including a combined prospectus, relating to the Notes and certain other securities has been filed with the Securities and Exchange Commission ("Commission") under the Securities Act of ~~1933~~ 1933, as amended (the "1933 Act"). Such registration statement and any post-effective amendment thereto, each in the form heretofore delivered to you, and, excluding exhibits thereto but including all documents incorporated by reference in the prospectus contained therein, ~~to you~~ for each of the other Underwriters, have been declared effective by the Commission in such form, and no stop order suspending the effectiveness of such registration statement has been issued and no proceeding for that purpose has been initiated or threatened by the Commission (any preliminary prospectus included in such registration statement or filed with the Commission pursuant to Rule 424(a) of the rules and regulations of the Commission under the 1933 Act ("1933 Act Regulations") being hereinafter called a "Preliminary Prospectus"; the various parts of such registration statement, including all exhibits thereto and including the documents incorporated by reference in the prospectus contained in the registration statement at the time such part of the registration statement became effective, each as amended at the time such part of the registration statement became effective, being hereinafter called the "Registration Statement"; and the final prospectus relating to the Notes, in the form first filed pursuant to Rule 424(b) under the 1933 ~~Act~~Act Regulations, being hereinafter called the "Prospectus"; and any reference herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein, as of the date of such Preliminary Prospectus or Prospectus, as the case may be; any reference to any amendment or supplement to any Preliminary Prospectus or Prospectus shall be deemed to refer to and include any documents filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended (the "1934 Act"), and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Corporation filed pursuant to Section 13(a) or 15(d) of the 1934 Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement). (b) The Registration Statement conforms and the Prospectus will conform in all material respects to the requirements of the 1933 Act and the 1933 Act Regulations, and the Registration Statement does not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and the Prospectus will not include any untrue statement of a material fact or omit to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the Corporation makes no warranty or representation to the Underwriters with respect to any statements or omissions made in reliance upon and in conformity with written information furnished to the Corporation by any Underwriter specifically for use therein or any information set forth in the Prospectus under the caption "Book-Entry System." (c) The documents incorporated by reference in the Prospectus, at the time they were filed with the Commission, complied in all material respects with the requirements of the 1934 Act and the rules and regulations of the Commission thereunder (the "1934 Act Regulations"), and, when read together with the other information in the Prospectus, do not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and any documents deemed to be incorporated by reference in the Prospectus will, when they are filed with the Commission, comply in all material respects with the requirements of the 1934 Act and the 1934 Act Regulations, and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. (d) The compliance by the Corporation with all of the provisions of this Agreement has been duly authorized by all necessary corporate action and the consummation of the transactions herein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Corporation or any of its Principal Subsidiaries (as hereinafter defined) is a party or by which any of them or their respective property is bound or to which any of their property or assets is subject that would have a material adverse effect on the business, financial condition or results of operations of the Corporation and its subsidiaries, taken as a whole, nor will such action result in any violation of the provisions of the Restated Articles of Incorporation or By-Laws of the Corporation or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Corporation or its Principal Subsidiaries or any of their respective property that would have a material adverse effect on the business, financial condition or results of operations of the Corporation and its subsidiaries, taken as a whole; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the consummation by the Corporation of the transactions contemplated by this Agreement, except for authorization by the North Carolina Utilities Commission and The Public Service Commission of South Carolina and the registration under the 1933 Act of the Notes, qualification under the Trust Indenture Act of 1939 and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters. (e) This Agreement has been duly authorized, executed and delivered by the Corporation. (f) Each of Duke Capital Corporation, Westcoast Energy Inc., PanEnergy Corp and Duke Energy Natural Gas Corporation is a Delaware corporation, and Texas Eastern Transmission, LP is a Delaware limited partnership (herein collectively referred to as the "Principal Subsidiaries"); each such entity is a direct or indirect wholly owned subsidiary of the Corporation. (g) The Indenture has been duly authorized, executed and delivered by the Corporation and duly qualified under the Trust Indenture Act of 1939 and, assuming the due authorization, execution and delivery thereof by the Trustee, constitutes a valid and legally binding instrument of the Corporation enforceable against the Corporation in accordance with its terms, subject to the qualifications that the enforceability of the Corporation's obligations under the Indenture may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law). (h) The Notes have been duly authorized and executed by the Corporation and, when authenticated by the Trustee, in the manner provided in the Indenture and delivered against payment therefor, will constitute valid and legally binding obligations of the Corporation, enforceable against the Corporation in accordance with their terms, subject to the qualifications that the enforceability of the Corporation's obligations under the Notes may be limited by bankruptcy, insolvency, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law), and are entitled to the benefits afforded by the Indenture in accordance with the terms of the Indenture and the Notes. (i) The agreements set forth on Annex A hereto list all indentures, mortgages, deeds of trust, loan agreements or other agreements or instruments that are material to the Corporation and its subsidiaries taken as a whole.

Appears in 1 contract

Samples: Underwriting Agreement (Duke Energy Capital Trust Iii)

Representations and Warranties of the Corporation. The Corporation represents and warrants to, and agrees with, the several Underwriters that: : (a) A registration statement (No. ), including a prospectus, relating to the Notes has been filed with the Securities and Exchange Commission ("Commission") under the Securities Act of ~~1933~~ 1933, as amended (the "1933 Act"). Such registration statement and any post-effective amendment thereto, each in the form heretofore delivered to you~~, and, excluding exhibits thereto but including all documents incorporated by reference in the prospectus contained therein, to you for each of the other Underwriters~~, have been declared effective by the Commission in such form, and no stop order suspending the effectiveness of such registration statement has been issued and no proceeding for that purpose has been initiated or threatened by the Commission (any preliminary prospectus included in such registration statement or filed with the Commission pursuant to Rule 424(a) of the rules and regulations of the Commission under the 1933 Act being hereinafter called a "Preliminary Prospectus"; the various parts of such registration statement, including all exhibits thereto and including the documents incorporated by reference in the prospectus contained in the registration statement at the time such part of the registration statement became effective, each as amended at the time such part of the registration statement became effective, being hereinafter called the "Registration Statement"; and the final prospectus relating to the Notes, in the form first filed pursuant to Rule 424(b) under the 1933 Act, being hereinafter called the "Prospectus"; and any reference herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein, as of the date of such Preliminary Prospectus or Prospectus, as the case may be; any reference to any amendment or supplement to any Preliminary Prospectus or Prospectus shall be deemed to refer to and include any documents filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended (the "1934 Act"), and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Corporation filed pursuant to Section 13(a) or 15(d) of the 1934 Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement). (b) The Registration Statement conforms and the Prospectus will conform in all material respects to the requirements of the 1933 Act and the rules and regulations thereunder ("1933 Act Regulations"), and the Registration Statement does not and the Prospectus will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, except that the foregoing does not apply to statements or omissions in any such document based upon written information furnished to the Corporation by any Underwriter specifically for use therein. (c) The documents incorporated by reference in the Prospectus, at the time they were filed with the Commission, conformed in all material respects to the requirements of the 1934 Act and the rules and regulations of the Commission thereunder (the "1934 Act Regulations"), and, when read together with the other information in the Prospectus, do not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and any documents deemed to be incorporated by reference in the Prospectus will, when they are filed with the Commission, comply in all material respects with the requirements of the 1934 Act and the 1934 Act Regulations, and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they are made, not misleading. (d) The compliance by the Corporation with all of the provisions of this Agreement and the consummation of the transactions herein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Corporation or any of its Principal Subsidiaries (as defined below) is a party or by which any of them or their respective property is bound or to which any of their property or assets is subject, nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or By-Laws of the Corporation or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Corporation or its Principal Subsidiaries or any of their respective property; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the consummation by the Corporation of the transactions contemplated by this Agreement, except for the registration under the 1933 Act of the Notes and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters. (e) Each of PanEnergy Corp, Texas Eastern Transmission Corporation and Algonquin Gas Transmission Company, each a Delaware corporation (and herein called a "Principal Subsidiary"), is a direct or indirect wholly-owned subsidiary of the Corporation.

Appears in 1 contract

Samples: Underwriting Agreement (Duke Capital Financing Trust Vi)

Representations and Warranties of the Corporation. The Corporation represents and warrants to, and agrees with, the several ~~Underwriters~~ Underwriters, the Forward Purchasers and the Forward Sellers that: : (a) ~~A registration statement~~ Registration statement, as amended (No. 333-213765), including a prospectus, relating to the ~~Notes~~ Shares and certain other securities has been filed with the Securities and Exchange Commission ("the “Commission"”) under the Securities Act of ~~1933~~ 1933, as amended (the "“1933 Act"”). Such registration statement and any post-effective amendment thereto, each in the form heretofore delivered to you, ~~and, excluding exhibits thereto but including all documents incorporated by reference in~~ became effective upon filing with the ~~prospectus contained therein,~~ Commission pursuant to ~~you for each~~ Rule 462 of the ~~other Underwriters, have been declared effective by~~ rules and regulations of the Commission ~~in such form~~under the 1933 Act (the “1933 Act Regulations”), and no stop order suspending the effectiveness of such registration statement has been issued and no proceeding for that purpose or pursuant to Section 8A of the 1933 Act has been initiated or threatened by the Commission (if prepared, any preliminary prospectus supplement specifically relating to the Shares immediately prior to the Applicable Time included in such registration statement or filed with the Commission pursuant to Rule ~~424(a~~424(b) of the ~~rules and regulations of the Commission under the~~ 1933 Act Regulations being hereinafter called a "“Preliminary Prospectus"”); the ~~various parts~~ term “Registration Statement” means the registration statement as deemed revised pursuant to Rule 430B(f)(1) of the 1933 Act Regulations on the date of such registration statement’s effectiveness for purposes of Section 11 of the 1933 Act, as such section applies to the Corporation and the Underwriters for the Shares pursuant to Rule 430B(f)(2) of the 1933 Act Regulations (the “Effective Date”), including all exhibits thereto and including the documents incorporated by reference in the prospectus contained in the ~~registration statement~~ Registration Statement at the time such part of the ~~registration statement~~ Registration Statement became effective~~, each as amended~~ ; the term “Base Prospectus” means the prospectus filed with the Commission on the date hereof by the Corporation; and the term “Prospectus” means the Base Prospectus together with the prospectus supplement specifically relating to the Shares prepared in accordance with the provisions of Rule 430B and promptly filed after execution and delivery of this Agreement pursuant to Rule 430B or Rule 424(b) of the 1933 Act Regulations; any information included in such Prospectus that was omitted from the Registration Statement at the time ~~such~~ it became effective but that is deemed to be a part of ~~the~~ and included in such registration statement ~~became effective, being hereinafter called the "Registration Statement"; and the final prospectus relating to the Notes, in the form first filed~~ pursuant to Rule ~~424(b) under the 1933 Act, being hereinafter called the "Prospectus"; and any reference herein~~ 430B is referred to ~~any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein,~~ as of the date of such Preliminary Prospectus or Prospectus, as the case may be; any reference to any amendment or supplement to any Preliminary Prospectus or Prospectus shall be deemed to refer to and include any documents filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended (the "1934 Act"), and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Corporation filed pursuant to Section 13(a) or 15(d) of the 1934 Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement).“Rule

Appears in 1 contract

Representations and Warranties of the Corporation. The Corporation represents and warrants to, and agrees with, the several Underwriters that: (a) A registration statement (No. 333-14209, which also constitutes a post- effective amendment to a previous registration statement No. 333-02571), including a prospectus, relating to the Notes has been filed with the Securities and Exchange Commission ("Commission") under the Securities Act of 1933 (the "1933 Act"). Such registration statement and any post-effective amendment thereto, each in the form heretofore delivered to you, and, excluding exhibits thereto but including all documents incorporated by reference in the prospectus contained therein, ~~to you~~ for each of the other Underwriters, have been declared effective by the Commission in such form, and no stop order suspending the effectiveness of such registration statement has been issued and no proceeding for that purpose has been initiated or threatened by the Commission (any preliminary prospectus included in such registration statement or filed with the Commission pursuant to Rule 424(a) of the rules and regulations of the Commission under the 1933 Act being hereinafter called a "Preliminary Prospectus"; the various parts of such registration statement, including all exhibits thereto and including the documents incorporated by reference in the prospectus contained in the registration statement at the time such part of the registration statement became effective, each as amended at the time such part of the registration statement became effective, being hereinafter called the "Registration Statement"; and the final prospectus relating to the Notes, in the form first filed pursuant to Rule 424(b) under the 1933 Act, being hereinafter called the "Prospectus"; and any reference herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein, as of the date of such Preliminary Prospectus or Prospectus, as the case may be; any reference to any amendment or supplement to any Preliminary Prospectus or Prospectus shall be deemed to refer to and include any documents filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended (the "1934 Act"), and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Corporation filed pursuant to Section 13(a) or 15(d~~) of the 1934 Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement~~).

Appears in 1 contract

Representations and Warranties of the Corporation. The Corporation represents and warrants to, and agrees with, the several Underwriters that: : (a) ~~A registration~~ Registration statement (No. 333-146483), including a prospectus, relating to the Notes and certain other securities has been filed with the Securities and Exchange Commission ("the “Commission"”) under the Securities Act of ~~1933~~ 1933, as amended (the "“1933 Act"”). Such registration statement and any post-effective amendment thereto, each in the form heretofore delivered to you, ~~and, excluding exhibits thereto but including all documents incorporated by reference in~~ became effective upon filing with the ~~prospectus contained therein,~~ Commission pursuant to ~~you for each~~ Rule 462 of the ~~other Underwriters, have been declared effective by~~ rules and regulations of the Commission ~~in such form~~under the 1933 Act (the “1933 Act Regulations”), and no stop order suspending the effectiveness of such registration statement has been issued and no proceeding for that purpose or pursuant to Section 8A of the 1933 Act has been initiated or threatened by the Commission (if prepared, any preliminary prospectus supplement specifically relating to the Notes immediately prior to the Applicable Time (as defined below) included in such registration statement or filed with the Commission pursuant to Rule ~~424(a~~424(b) of the ~~rules and regulations of the Commission under the~~ 1933 Act Regulations being hereinafter called a "“Preliminary Prospectus"”); the ~~various parts~~ term “Registration Statement” means the registration statement as deemed revised pursuant to Rule 430B(f)(1) of the 1933 Act Regulations on the date of such registration statement’s effectiveness for purposes of Section 11 of the 1933 Act, as such section applies to the Corporation and the Underwriters for the Notes pursuant to Rule 430B(f)(2) of the 1933 Act Regulations (the “Effective Date”), including all exhibits thereto and including the documents incorporated by reference in the prospectus contained in the ~~registration statement~~ Registration Statement at the time such part of the ~~registration statement~~ Registration Statement became effective~~, each as amended~~ ; the term “Base Prospectus” means the prospectus filed with the Commission on the date hereof by the Corporation; and the term “Prospectus” means the Base Prospectus together with the prospectus supplement specifically relating to the Notes prepared in accordance with the provisions of Rule 430B and promptly filed after execution and delivery of this Agreement pursuant to Rule 430B or Rule 424(b) of the 1933 Act Regulations; any information included in such Prospectus that was omitted from the Registration Statement at the time ~~such~~ it became effective but that is deemed to be a part of ~~the~~ and included in such registration statement ~~became effective, being hereinafter called the "Registration Statement"; and the final prospectus relating to the Notes, in the form first filed~~ pursuant to Rule ~~424(b) under the 1933 Act, being hereinafter called the "Prospectus";~~ 430B is referred to as “Rule 430B Information;” and any reference herein to any Registration Statement, Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference ~~therein, as of~~ therein prior to the date ~~of such Preliminary Prospectus or Prospectus, as the case may be~~hereof; any reference to any amendment or supplement to any Preliminary Prospectus or Prospectus shall be deemed to refer to and include any documents filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended (the "“1934 Act"”), and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Corporation filed pursuant to Section 13(a) or 15(d) of the 1934 Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement). For purposes of this Agreement, the term “Applicable Time” means 1:19 p.m. (New York City time) on the date hereof.

Appears in 1 contract

Representations and Warranties of the Corporation. The Corporation represents and warrants to, and agrees with, the several Underwriters that: : (a) A registration statement (No. ), including a prospectus, relating to the Notes has been filed with the Securities and Exchange Commission ("Commission") under the Securities Act of ~~1933~~ 1933, as amended (the "1933 Act"). Such registration statement and any post-effective amendment thereto, each in the form heretofore delivered to you~~, and, excluding exhibits thereto but including all documents incorporated by reference in the prospectus contained therein, to you for each of the other Underwriters~~, have been declared effective by the Commission in such form, and no stop order suspending the effectiveness of such registration statement has been issued and no proceeding for that purpose has been initiated or threatened by the Commission (any preliminary prospectus included in such registration statement or filed with the Commission pursuant to Rule 424(a) of the rules and regulations of the Commission under the 1933 Act being hereinafter called a "Preliminary Prospectus"; the various parts of such registration statement, including all exhibits thereto and including the documents incorporated by reference in the prospectus contained in the registration statement at the time such part of the registration statement became effective, each as amended at the time such part of the registration statement became effective, being hereinafter called the "Registration Statement"; and the final prospectus relating to the Notes, in the form first filed pursuant to Rule 424(b) under the 1933 Act, being hereinafter called the "Prospectus"; and any reference herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein, as of the date of such Preliminary Prospectus or Prospectus, as the case may be; any reference to any amendment or supplement to any Preliminary Prospectus or Prospectus shall be deemed to refer to and include any documents filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended (the "1934 Act"), and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Corporation filed pursuant to Section 13(a) or 15(d) of the 1934 Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement). (b) The Registration Statement conforms and the Prospectus will conform in all material respects to the requirements of the 1933 Act and the rules and regulations thereunder ("1933 Act Regulations"), and the Registration Statement does not and the Prospectus will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, except that the foregoing does not apply to statements or omissions in any such document based upon written information furnished to the Corporation by any Underwriter specifically for use therein. (c) The documents incorporated by reference in the Prospectus, at the time they were filed with the Commission, conformed in all material respects to the requirements of the 1934 Act and the rules and regulations of the Commission thereunder (the "1934 Act Regulations"), and, when read together with the other information in the Prospectus, do not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and any documents deemed to be incorporated by reference in the Prospectus will, when they are filed with the Commission, comply in all material respects with the requirements of the 1934 Act and the 1934 Act Regulations, and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they are made, not misleading. (d) The compliance by the Corporation with all of the provisions of this Agreement and the consummation of the transactions herein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Corporation is a party or by which it or its property is bound or to which any of its property or assets is subject, nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or By-Laws of the Corporation or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Corporation or any of its property; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the consummation by the Corporation of the transactions contemplated by this Agreement, except for the registration under the 1933 Act of the Notes and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters.

Appears in 1 contract

Samples: Underwriting Agreement (Texas Eastern Transmission Corp)

Representations and Warranties of the Corporation. The Corporation represents and warrants ~~to,~~ to and agrees ~~with,~~ with the ~~several~~ Underwriters that: : (a) ~~A registration statement~~ it is a not-for-profit corporation duly created and validly existing and in good standing under Chapter 617, Florida Statutes and has all necessary licenses and permits to conduct its business as described in the Preliminary Offering Statement and the Offering Statement and to act as lessee and sublessee under the Series 2001A-1 Ground Lease, the Series 2001B-1 Ground Lease, the Series 2003A-1 Ground Lease and the Series 2004 Ground Lease (~~No.~~ collectively, the “Ground Leases”) and as lessor in connection with the lease-purchase by the School Board of the Series 2001A-1 Facilities, the Series 2001B-1 Facilities, the Series 2003A Facilities and the Series 2004-1 Facilities (collectively, the “Facilities”), ; (b) both at the time of its acceptance hereof and at all times during the period from the date hereof up to and including a ~~prospectus, relating~~ date which is the later of (i) receipt of notice from the Manager pursuant to Section 3(c) hereof that the ~~Notes has been~~ Offering Statement is no longer required to be delivered under the Rule or (ii) 90 days after the date of the Closing (or 25 days after the date of the Closing if the Offering Statement is filed with the ~~Securities~~ MSRB in electronic format at or prior to Closing), the statements and Exchange Commission ("Commission") under the Securities Act of 1933 (the "1933 Act"). Such registration statement and any post-effective amendment thereto, each in the form heretofore delivered to you, and, excluding exhibits thereto but including all documents incorporated by reference in the prospectus contained therein, to you for each of the other Underwriters, have been declared effective by the Commission in such form, and no stop order suspending the effectiveness of such registration statement has been issued and no proceeding for that purpose has been initiated or threatened by the Commission (any preliminary prospectus included in such registration statement or filed with the Commission pursuant to Rule 424(a) of the rules and regulations of the Commission under the 1933 Act being hereinafter called a "Preliminary Prospectus"; the various parts of such registration statement, including all exhibits thereto and including the documents incorporated by reference in the prospectus information contained in the ~~registration statement at~~ Offering Statement with respect to the ~~time such part~~ Corporation are and are expected to be, to the best of its knowledge after due inquiry, true, correct and complete in all material respects and the Offering Statement, to the knowledge of the ~~registration statement became effective~~Corporation after due inquiry, each as amended at the time such part of the registration statement became effective, being hereinafter called the "Registration Statement"; and the final prospectus relating to the Notes, in the form first filed pursuant to Rule 424(b) under the 1933 Act, being hereinafter called the "Prospectus"; and any reference herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein, does not as of the date of ~~such Preliminary Prospectus or Prospectus~~acceptance hereof and is not expected to, as at any time during the ~~case may be; any reference to any amendment or supplement to any Preliminary Prospectus or Prospectus shall be deemed to refer~~ period from the date hereof up to and ~~include any documents filed~~ including the later of (i) receipt of notice from the Manager pursuant to Section 3(c) hereof that the Offering Statement is no longer required to be delivered under the Rule or (ii) 90 days after the date of the Closing (or 25 days after the date of the Closing if the Offering Statement is filed with the MSRB in electronic format at or prior to Closing), contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or which is necessary to make the statements and information therein, in light of the circumstances under which they were made, not misleading in any material respect; (c) if the Offering Statement is supplemented or amended pursuant to Section 10 hereof, at the time of each supplement or amendment thereto and (unless subsequently again supplemented or amended pursuant to Section 10 hereof) at all times during the period from the date of such ~~Preliminary Prospectus~~ supplement or ~~Prospectus~~amendment to and including a date which is the later of (i) receipt of notice from the Manager pursuant to Section 3(c) hereof that the Offering Statement is no longer required to be delivered under the Rule or (ii) 90 days after the date of the Closing (or 25 days after the date of the Closing if the Offering Statement is filed with the MSRB in electronic format at or prior to Closing), the Offering Statement as so supplemented or amended will not contain any untrue statement of a material fact or omit any statement or information that is necessary to make the statements contained therein, in the light of the circumstances under which they were made, not misleading; (d) the Corporation will cooperate with the Underwriters and their counsel, and use its best efforts to cause the School Board to cooperate with the Underwriters and their counsel, in taking all necessary action to qualify the Series 2012A Certificates for offer and sale under the securities or “blue sky” laws of such jurisdictions as the ~~case~~ Underwriters may bereasonably request; provided however that neither the Corporation nor the School Board will be required to execute a special or general consent to service of process, pay any fee or qualify as a foreign corporation in connection with such qualification; (e) the execution and delivery by the Corporation of this Certificate Purchase Agreement, the Series 2012A Trust Agreement, the Series 2001A-1 Lease, the Series 2001B-1 Lease, the Series 2003A Leases and the Series 2004-1 Lease (such Leases hereinafter referred to collectively as the “Leases”), were duly approved by the Corporation’s Board of Directors by Resolution No. 90-1 dated July 11, 1990, Resolution No. 97-3 dated March 18, 1997 and Resolution No. 12-0 dated March , 2012 of such board (collectively, the “Corporation Resolutions”), in complete conformity with the Articles of Incorporation and the By-Laws of the Corporation and Florida law; (f) the approval, execution and delivery of this Certificate Purchase Agreement, the Series 2012A Trust Agreement and the Leases, adoption of the Corporation Resolutions and compliance with the provisions thereof and hereof, under the ~~Securities Exchange Act~~ circumstances contemplated thereby and hereby, do not and will not conflict with, constitute a breach of ~~1934~~or default under, ~~as amended (~~or result in the ~~"1934 Act"), and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; and~~ creation of a lien on any ~~reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report~~ property of the Corporation ~~filed~~ (except as contemplated therein) pursuant to ~~Section 13(a)~~ applicable law or ~~15(d)~~ any indenture, bond resolution, deed of trust, mortgage, agreement or other instrument to which the Corporation is a party, except as described in the Offering Statement, or conflict with or violate any applicable law, administrative rule, regulation, judgment, court order or consent decree to which the Corporation is subject which in any such event would have a material adverse effect on the prepayment of the ~~1934 Act after~~ Basic Lease Payments represented by the ~~effective date~~ portion of the ~~Registration Statement that is incorporated by reference~~ Series 2001A Certificates, the portion of the Series 2001B Certificates, the portion of the Series 2003A Certificates and the portion of the Series 2004C Certificates to be prepaid upon issuance of the Series 2012A Certificates (collectively, the “Refunded Certificates”), issuance of the Series 2012A Certificates or any of the transactions contemplated thereby; (g) except as disclosed in the ~~Registration~~ Offering Statement, there is no claim, action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental agency, or public board or body, pending or, to the best of its knowledge, threatened (i) contesting the corporate existence or powers of the Corporation or the titles of the officers of the Corporation to their respective offices, (ii) seeking to prohibit, restrain or enjoin the collection of moneys under the Leases, the prepayment of the Basic Lease Payments represented by the Refunded Certificates or the application of the proceeds of the Series 2012A Certificates in the manner contemplated herein and in the Offering Statement, wherein an unfavorable decision, ruling or finding would materially adversely affect the financial position of the Corporation or the operation of its facilities or the validity or enforceability of the Series 2012A Certificates, the Series 2001A Trust Agreement, the Series 2001B Trust Agreement, the Series 2003A Trust Agreement, the Series 2004 Trust Agreement or the Series 2012A Trust Agreement (such Trust Agreements hereinafter referred to collectively as the “Trust Agreements”), the Ground Leases, the Leases, the Series 2001A Assignment Agreement, the Series 2001B Assignment Agreement, the Series 2003A Assignment Agreement or the Series 2004 Assignment Agreement (such Assignment Agreements hereinafter referred to collectively as the “Assignment Agreements”), the Corporation Resolutions or this Certificate Purchase Agreement (collectively, the “Corporation Documents”), (iii) contesting or affecting the validity of any of the Corporation Documents, (iv) contesting in any way the completeness or accuracy of the Offering Statement (nor, to the best knowledge of the Corporation is there any basis therefor), or (v) challenging the right of the Corporation to act as lessee or sublessee or as sublessor under any of the Ground Leases or as lessor in connection with the lease-purchase by the School Board of any of the Facilities or to prepay any of the Refunded Certificates; (h) when duly executed and delivered at or prior to the Closing in accordance with the provisions of this Certificate Purchase Agreement, the Corporation Documents will have been duly authorized, executed and delivered by the Corporation and will constitute legal, valid and binding agreements of the Corporation enforceable in accordance with their terms, subject to applicable bankruptcy, moratorium or similar laws relating to the enforcement of creditors’ rights generally and to the application of general principles of equity; (i) when duly executed and delivered at the Closing in accordance with the provisions of this Certificate Purchase Agreement, the Series 2012A Certificates will constitute evidence of legal, valid and binding undivided proportionate interests in the Corporation’s rights to receive Basic Lease Payments pursuant to the (a) Series 2001A-1 Lease, on a parity with the Series 2004B Certificates and Series 2011A Certificates allocable to the Series 2001A-1 Lease, (b) Series 2001B-1 Lease, on a parity with the Series 2004B Certificates and Series 2011A Certificates allocable to the Series 2001B-1 Lease, (c) Series 2003A Leases, on a parity with the Series 2003A Certificates allocable to the Series 2003A Leases, respectively, and (d) Series 2004-1 Lease, on a parity with the Series 2004C Certificates and Series 2004D Certificates allocable to the Series 2004-1 Lease, enforceable in accordance with their terms, subject to applicable bankruptcy, moratorium or similar laws relating to the enforcement of creditors’ rights generally and to the application of general principles of equity; (j) except as otherwise described in the Offering Statement and except as may be required by the “blue sky” or other securities laws of any of the jurisdictions where the Series 2012A Certificates may be sold, the Corporation has received and there remains currently in full force and effect, or will receive prior to the delivery of the Series 2012A Certificates, all governmental consents and approvals that would constitute a condition precedent to, or the absence of which would materially adversely affect, the performance by the Corporation of its obligations hereunder or under any of the Corporation Documents; and (k) the Corporation acknowledges and agrees that (i) the purchase and sale of the Series 2012A Certificates pursuant to this Certificate Purchase Agreement is an arm’s- length commercial transaction among the Corporation, the School Board and the Underwriters, (ii) in connection with such transaction and with the discussions, undertakings and procedures leading up to the consummation of such transaction, the Manager is and has been acting solely as a principal and not as a municipal advisor, financial advisor, agent or fiduciary of the Corporation and the Manager has financial and other interests that differ from those of the Corporation, (iii) the Manager has not assumed an advisory or fiduciary responsibility in favor of the Corporation with respect to any of the transactions contemplated hereby or the discussions, undertakings and procedures leading thereto (irrespective of whether the Manager or any of the Underwriters have provided other services or is currently providing other services to the Corporation on other matters) and the Underwriters have no obligation to the Corporation with respect to any of the transactions contemplated hereby except the obligations expressly set forth in this Certificate Purchase Agreement and (iv) the Corporation has consulted its own legal, financial, accounting, tax and other advisors to the extent it has deemed appropriate and has in fact retained advisors, as set forth in the Offering Statement, to provide legal, financial, accounting, tax and other consultation and advice in connection with the issuance of the Series 2012A Certificates.

Appears in 1 contract

Representations and Warranties of the Corporation. The Corporation represents and warrants to, and agrees with, the several Underwriters that: (a) A registration statement (No. ), including a prospectus, relating to the Notes has been filed with the Securities and Exchange Commission ("Commission") under the Securities Act of 1933 (the "1933 Act"). Such registration statement and any post-effective amendment thereto, each in the form heretofore delivered to you~~, and, excluding exhibits thereto but including all documents incorporated by reference in the prospectus contained therein, to you for each of the other Underwriters~~, have been declared effective by the Commission in such form, and no stop order suspending the effectiveness of such registration statement has been issued and no proceeding for that purpose has been initiated or threatened by the Commission (any preliminary prospectus included in such registration statement or filed with the Commission pursuant to Rule 424(a) of the rules and regulations of the Commission under the 1933 Act being hereinafter called a "Preliminary Prospectus"; the various parts of such registration statement, including all exhibits thereto and including the documents incorporated by reference in the prospectus contained in the registration statement at the time such part of the registration statement became effective, each as amended at the time such part of the registration statement became effective, being hereinafter called the "Registration Statement"; and the final prospectus relating to the Notes, in the form first filed pursuant to Rule 424(b) under the 1933 Act, being hereinafter called the "Prospectus"; and any reference herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein, as of the date of such Preliminary Prospectus or Prospectus, as the case may be; any reference to any amendment or supplement to any Preliminary Prospectus or Prospectus shall be deemed to refer to and include any documents filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended (the "1934 Act"), and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Corporation filed pursuant to Section 13(a) or 15(d) of the 1934 Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement).Preliminary

Appears in 1 contract

Samples: Underwriting Agreement (Duke Capital Financing Trust V)

Representations and Warranties of the Corporation. The Corporation represents and warrants ~~to,~~ to and agrees ~~with,~~ with the ~~several~~ Underwriters that: : (a) ~~A registration statement~~ it is a not-for-profit corporation duly created and validly existing and in good standing under Chapter 617, Florida Statutes and has all necessary licenses and permits to conduct its business as described in the Preliminary Offering Statement and the Offering Statement and to act as lessee and sublessee under the Series 1991A Ground Lease, the Series 1992A Ground Lease, the Series 2001A-1 Ground Lease and the Series 2001B-1 Ground Lease (~~No.~~ collectively, the “Ground Leases”) and as lessor in connection with the lease- purchase by the School Board of the Series 1991A-1 Facilities, the Series 1992A-1 Facilities, the Series 2001A-1 Facilities and the Series 2001B-1 Facilities (collectively, the “Facilities”), ; (b) both at the time of its acceptance hereof and at all times during the period from the date hereof up to and including a ~~prospectus, relating~~ date which is the later of (i) receipt of notice from the Manager pursuant to Section 3(c) hereof that the ~~Notes has been~~ Offering Statement is no longer required to be delivered under the Rule or (ii) 90 days after the date of the Closing (or 25 days after the date of the Closing if the Offering Statement is filed with the ~~Securities~~ MSRB in electronic format at or prior to Closing), the statements and Exchange Commission ("Commission") under the Securities Act of 1933 (the "1933 Act"). Such registration statement and any post-effective amendment thereto, each in the form heretofore delivered to you, and, excluding exhibits thereto but including all documents incorporated by reference in the prospectus contained therein, to you for each of the other Underwriters, have been declared effective by the Commission in such form, and no stop order suspending the effectiveness of such registration statement has been issued and no proceeding for that purpose has been initiated or threatened by the Commission (any preliminary prospectus included in such registration statement or filed with the Commission pursuant to Rule 424(a) of the rules and regulations of the Commission under the 1933 Act being hereinafter called a "Preliminary Prospectus"; the various parts of such registration statement, including all exhibits thereto and including the documents incorporated by reference in the prospectus information contained in the ~~registration statement at~~ Offering Statement with respect to the ~~time such part~~ Corporation are and are expected to be, to the best of its knowledge after due inquiry, true, correct and complete in all material respects and the Offering Statement, to the knowledge of the ~~registration statement became effective~~Corporation after due inquiry, each as amended at the time such part of the registration statement became effective, being hereinafter called the "Registration Statement"; and the final prospectus relating to the Notes, in the form first filed pursuant to Rule 424(b) under the 1933 Act, being hereinafter called the "Prospectus"; and any reference herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein, does not as of the date of ~~such Preliminary Prospectus or Prospectus~~acceptance hereof and is not expected to, as at any time during the ~~case may be; any reference to any amendment or supplement to any Preliminary Prospectus or Prospectus shall be deemed to refer~~ period from the date hereof up to and ~~include any documents filed~~ including the later of (i) receipt of notice from the Manager pursuant to Section 3(c) hereof that the Offering Statement is no longer required to be delivered under the Rule or (ii) 90 days after the date of the Closing (or 25 days after the date of the Closing if the Offering Statement is filed with the MSRB in electronic format at or prior to Closing), contain any untrue statement of a material fact or omit any statement or information which is necessary to make the statements and information therein, in light of the circumstances under which they were made, not misleading in any material respect; (c) if the Offering Statement is supplemented or amended pursuant to Section 10 hereof, at the time of each supplement or amendment thereto and (unless subsequently again supplemented or amended pursuant to Section 10 hereof) at all times during the period from the date of such ~~Preliminary Prospectus~~ supplement or ~~Prospectus~~amendment to and including a date which is the later of (i) receipt of notice from the Manager pursuant to Section 3(c) hereof that the Offering Statement is no longer required to be delivered under the Rule or (ii) 90 days after the date of the Closing (or 25 days after the date of the Closing if the Offering Statement is filed with the MSRB in electronic format at or prior to Closing), the Offering Statement as so supplemented or amended will not contain any untrue statement of a material fact or omit any statement or information that is necessary to make the statements contained therein, in the light of the circumstances under which they were made, not misleading; (d) the Corporation will cooperate with the Underwriters and their counsel, and use its best efforts to cause the School Board to cooperate with the Underwriters and their counsel, in taking all necessary action to qualify the Series 2010B Certificates for offer and sale under the securities or “blue sky” laws of such jurisdictions as the ~~case~~ Underwriters may bereasonably request; provided however that neither the Corporation nor the School Board will be required to execute a special or general consent to service of process, pay any fee or qualify as a foreign corporation in connection with such qualification; (e) the execution and delivery by the Corporation of this Certificate Purchase Agreement, the Series 2010B Trust Agreement, the Series 1991A-1 Lease, the Series 1992A- 1 Lease, the Series 2001A-1 Lease and the Series 2001B-1 Lease (such Leases hereinafter referred to collectively as the “Leases”), were duly approved by the Corporation’s Board of Directors by Resolution No. 90-1 dated July 11, 1990, Resolution No. 97-3 dated March 18, 1997 and Resolution No. 10- dated November , 2010 of such board (collectively, the “Corporation Resolutions”), in complete conformity with the Articles of Incorporation and the By-Laws of the Corporation and Florida law; (f) the approval, execution and delivery of this Certificate Purchase Agreement, the Series 2010B Trust Agreement and the Leases, adoption of the Corporation Resolutions and compliance with the provisions thereof and hereof, under the ~~Securities Exchange Act~~ circumstances contemplated thereby and hereby, do not and will not conflict with, constitute a breach of ~~1934~~or default under, ~~as amended (~~or result in the ~~"1934 Act"), and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; and~~ creation of a lien on any ~~reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report~~ property of the Corporation ~~filed~~ (except as contemplated therein) pursuant to ~~Section 13(a~~applicable law or any indenture, bond resolution, deed of trust, mortgage, agreement or other instrument to which the Corporation is a party, except as described in the Offering Statement, or conflict with or violate any applicable law, administrative rule, regulation, judgment, court order or consent decree to which the Corporation is subject which in any such event would have a material adverse effect on the prepayment of the Refunded Certificates, issuance of the Series 2010B Certificates or any of the transactions contemplated thereby; (g) except as disclosed in the Offering Statement, there is no claim, action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental agency, or public board or body, pending or, to the best of its knowledge, threatened (i) contesting the corporate existence or powers of the Corporation or the titles of the officers of the Corporation to their respective offices, (ii) seeking to prohibit, restrain or enjoin the collection of moneys under the Leases, the prepayment of the Basic Lease Payments represented by the Series 1997A Certificates, the Series 1997B Certificates, the portion of the Series 2001A Certificates and the portion of the Series 2001B Certificates to be prepaid upon issuance of the Series 2010B Certificates (collectively, the “Refunded Certificates”) or ~~15(d)~~ the application of the ~~1934 Act after the effective date~~ proceeds of the ~~Registration Statement that is incorporated by reference~~ Series 2010B Certificates in the ~~Registration~~ manner contemplated herein and in the Offering Statement, wherein an unfavorable decision, ruling or finding would materially adversely affect the financial position of the Corporation or the operation of its facilities or the validity or enforceability of the Series 2010B Certificates, the Series 2001A Trust Agreement, the Series 2001B Trust Agreement, the Series 2004B Trust Agreement or the Series 2010B Trust Agreement (such Trust Agreements hereinafter referred to collectively as the “Trust Agreements”), the Ground Leases, the Leases, the Series 1991A Assignment Agreement, the Series 1992A Assignment Agreement, the Series 2001A Assignment Agreement or the Series 2001B Assignment Agreement (such Assignment Agreements hereinafter referred to collectively as the “Assignment Agreements”), the Corporation Resolutions or this Certificate Purchase Agreement (collectively, the “Corporation Documents”), (iii) contesting or affecting the validity of any of the Corporation Documents, (iv) contesting in any way the completeness or accuracy of the Offering Statement (nor, to the best knowledge of the Corporation is there any basis therefor), or (v) challenging the right of the Corporation to act as lessee or sublessee or as sublessor under any of the Ground Leases or as lessor in connection with the lease-purchase by the School Board of any of the Facilities or to prepay any of the Refunded Certificates; (h) when duly executed and delivered at or prior to the Closing in accordance with the provisions of this Certificate Purchase Agreement, the Corporation Documents will have been duly authorized, executed and delivered by the Corporation and will constitute valid and binding agreements of the Corporation enforceable in accordance with their terms, subject to applicable bankruptcy, moratorium or similar laws relating to the enforcement of creditors’ rights generally and to the application of general principles of equity; (i) when duly executed and delivered at the Closing in accordance with the provisions of this Certificate Purchase Agreement, the Series 2010B Certificates will constitute evidence of valid and binding undivided proportionate interests in the Corporation’s rights to receive Basic Lease Payments pursuant to the Series 1991A-1 Lease, the Series 1992A-1 Lease, the Series 2001A-1 Lease, on a parity (relating to the Series 2001A-1 Lease) with the Outstanding Series 2001A Certificates and the Series 2004A Certificates allocable to the Series 2001A-1 Lease, and on a parity (relating to the Series 2001B-1 Lease) with the Outstanding Series 2001B Certificates and the Series 2004B Certificates allocable to the Series 2001B-1 Lease, enforceable in accordance with their terms, subject to applicable bankruptcy, moratorium or similar laws relating to the enforcement of creditors’ rights generally and to the application of general principles of equity; (j) except as otherwise described in the Offering Statement and except as may be required by the “blue sky” or other securities laws of any of the jurisdictions where the Series 2010B Certificates may be sold, the Corporation has received and there remains currently in full force and effect, or will receive prior to the delivery of the Series 2010B Certificates, all governmental consents and approvals that would constitute a condition precedent to, or the absence of which would materially adversely affect, the performance by the Corporation of its obligations hereunder or under any of the Corporation Documents; and (k) the Corporation acknowledges and agrees that (i) the purchase and sale of the Series 2010B Certificates pursuant to this Certificate Purchase Agreement is an arm’s-length commercial transaction among the Corporation, the School Board and the Underwriters, (ii) in connection with such transaction and with the discussions, undertakings and procedures leading up to the consummation of such transaction, the Manager is and has been acting solely as a principal and not as an agent or fiduciary of the Corporation, (iii) the Manager has not assumed an advisory or fiduciary responsibility in favor of the Corporation with respect to any of the transactions contemplated hereby or the discussions, undertakings and procedures leading thereto (irrespective of whether the Manager or any of the Underwriters have provided other services or is currently providing other services to the Corporation on other matters) and the Underwriters have no obligation to the Corporation with respect to any of the transactions contemplated hereby except the obligations expressly set forth in this Certificate Purchase Agreement and (iv) the Corporation has consulted its own legal, financial and other advisors to the extent it has deemed appropriate.

Appears in 1 contract

Representations and Warranties of the Corporation. The Corporation represents and warrants to, and agrees with, the several Underwriters that: : (a) A registration ~~statement~~ statement, as amended (No. 333-213765), including a prospectus, relating to the ~~Notes~~ Securities and certain other securities has been filed with the Securities and Exchange Commission ("the “Commission"”) under the Securities Act of ~~1933~~ 1933, as amended (the "“1933 Act"”). Such registration statement and any post-effective amendment thereto, each in the form heretofore delivered to you, ~~and, excluding exhibits thereto but including all documents incorporated by reference in~~ became effective upon filing with the ~~prospectus contained therein,~~ Commission pursuant to ~~you for each~~ Rule 462 of the ~~other Underwriters, have been declared effective by~~ rules and regulations of the Commission ~~in such form~~under the 1933 Act (the “1933 Act Regulations”), and no stop order suspending the effectiveness of such registration statement has been issued and no proceeding for that purpose or pursuant to Section 8A of the 1933 Act has been initiated or threatened by the Commission (if prepared, any preliminary prospectus supplement specifically relating to the Securities immediately prior to the Applicable Time included in such registration statement or filed with the Commission pursuant to Rule ~~424(a~~424(b) of the ~~rules and regulations of the Commission under the~~ 1933 Act Regulations being hereinafter called a "“Preliminary Prospectus"”); the ~~various parts~~ term “Registration Statement” means the registration statement as deemed revised pursuant to Rule 430B(f)(1) of the 1933 Act Regulations on the date of such registration statement’s effectiveness for purposes of Section 11 of the 1933 Act, as such section applies to the Corporation and the Underwriters for the Securities pursuant to Rule 430B(f)(2) of the 1933 Act Regulations (the “Effective Date”), including all exhibits thereto and including the documents incorporated by reference in the prospectus contained in the ~~registration statement~~ Registration Statement at the time such part of the ~~registration statement~~ Registration Statement became effective~~, each as amended~~ ; the term “Base Prospectus” means the prospectus filed with the Commission on the date hereof by the Corporation; and the term “Prospectus” means the Base Prospectus together with the prospectus supplement specifically relating to the Securities prepared in accordance with the provisions of Rule 430B and promptly filed after execution and delivery of this Agreement pursuant to Rule 430B or Rule 424(b) of the 1933 Act Regulations; any information included in such Prospectus that was omitted from the Registration Statement at the time ~~such~~ it became effective but that is deemed to be a part of ~~the~~ and included in such registration statement ~~became effective, being hereinafter called the "Registration Statement"; and the final prospectus relating to the Notes, in the form first filed~~ pursuant to Rule ~~424(b) under the 1933 Act, being hereinafter called the "Prospectus";~~ 430B is referred to as “Rule 430B Information;” and any reference herein to any Registration Statement, the Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference ~~therein, as of~~ therein prior to the date ~~of such Preliminary Prospectus or Prospectus, as the case may be~~hereof; any reference to any amendment or supplement to ~~any~~ the Preliminary Prospectus or Prospectus shall be deemed to refer to and include any documents filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended (the "1934 Act"), and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Corporation filed pursuant to Section 13(a) or 15(d) of the 1934 Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement).as

Appears in 1 contract

Representations and Warranties of the Corporation. The Corporation represents and warrants to, and agrees with, the several Underwriters that: : (a) ~~A registration~~ Registration statement (No. 333-233896), including a prospectus, relating to the Notes and certain other securities has been filed with the Securities and Exchange Commission ("the “Commission"”) under the Securities Act of ~~1933~~ 1933, as amended (the "“1933 Act"”). Such registration statement and any post-effective amendment thereto, each in the form heretofore delivered to you, ~~and, excluding exhibits thereto but including all documents incorporated by reference in~~ became effective upon filing with the ~~prospectus contained therein,~~ Commission pursuant to ~~you for each~~ Rule 462 of the ~~other Underwriters, have been declared effective by~~ rules and regulations of the Commission ~~in such form~~under the 1933 Act (the “1933 Act Regulations”), and no stop order suspending the effectiveness of such registration statement has been issued and no proceeding for that purpose or pursuant to Section 8A of the 1933 Act has been initiated or threatened by the Commission (if prepared, any preliminary prospectus supplement specifically relating to the Notes immediately prior to the Applicable Time included in such registration statement or filed with the Commission pursuant to Rule ~~424(a~~424(b) of the ~~rules and regulations of the Commission under the~~ 1933 Act Regulations being hereinafter called a "“Preliminary Prospectus"”); the ~~various parts~~ term “Registration Statement” means the registration statement as deemed revised pursuant to Rule 430B(f)(1) of the 1933 Act Regulations on the date of such registration statement’s effectiveness for purposes of Section 11 of the 1933 Act, as such section applies to the Corporation and the Underwriters for the Notes pursuant to Rule 430B(f)(2) of the 1933 Act Regulations (the “Effective Date”), including all exhibits thereto and including the documents incorporated by reference in the prospectus contained in the ~~registration statement~~ Registration Statement at the time such part of the ~~registration statement~~ Registration Statement became effective~~, each as amended~~ ; the term “Base Prospectus” means the prospectus filed with the Commission on the date hereof by the Corporation; and the term “Prospectus” means the Base Prospectus together with the prospectus supplement specifically relating to the Notes prepared in accordance with the provisions of Rule 430B and promptly filed after execution and delivery of this Agreement pursuant to Rule 430B or Rule 424(b) of the 1933 Act Regulations; any information included in such Prospectus that was omitted from the Registration Statement at the time ~~such~~ it became effective but that is deemed to be a part of ~~the~~ and included in such registration statement ~~became effective, being hereinafter called the "Registration Statement"; and the final prospectus relating to the Notes, in the form first filed~~ pursuant to Rule ~~424(b) under the 1933 Act, being hereinafter called the "Prospectus";~~ 430B is referred to as “Rule 430B Information;” and any reference herein to any Registration Statement, the Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference ~~therein, as of~~ therein prior to the date ~~of such Preliminary Prospectus or Prospectus, as the case may be~~hereof; any reference to any amendment or supplement to ~~any~~ the Preliminary Prospectus or Prospectus shall be deemed to refer to and include any documents filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended (the "“1934 Act"”), and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Corporation filed pursuant to Section 13(a) or 15(d) of the 1934 Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement). For purposes of this Agreement, the term “Applicable Time” means 3:40 p.m. (New York City time) on the date hereof.

Appears in 1 contract

Representations and Warranties of the Corporation. The Corporation represents and warrants to, and agrees with, the several Underwriters that: (a) A registration statement (No. ), including a prospectus, relating to the Notes has been filed with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933 (the "1933 Act"). Such registration statement and any post-effective amendment thereto, each in the form heretofore delivered to you~~, and, excluding exhibits thereto but including all documents incorporated by reference in the prospectus contained therein, to you for each of the other Underwriters~~, have been declared effective by the Commission in such form, and no stop order suspending the effectiveness of such registration statement has been issued and no proceeding for that purpose has been initiated or threatened by the Commission (any preliminary prospectus included in such registration statement or filed with the Commission pursuant to Rule 424(a) of the rules and regulations of the Commission under the 1933 Act being hereinafter called a "Preliminary Prospectus"; the various parts of such registration statement, including all exhibits thereto and including the documents incorporated by reference in the prospectus contained in the registration statement at the time such part of the registration statement became effective, each as amended at the time such part of the registration statement became effective, being hereinafter called the "Registration Statement"; and the final prospectus relating to the Notes, in the form first filed pursuant to Rule 424(b) under the 1933 Act, being hereinafter called the "Prospectus"; and any reference herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein, as of the date of such Preliminary Prospectus or Prospectus, as the case may be; any reference to any amendment or supplement to any Preliminary Prospectus or Prospectus shall be deemed to refer to and include any documents filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended (the "1934 Act"), and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Corporation filed pursuant to Section 13(a) or 15(d) of the 1934 Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement).and

Appears in 1 contract

Samples: Underwriting Agreement (Duke Capital Financing Trust V)

Representations and Warranties of the Corporation. The Corporation represents and warrants to, and agrees with, the several Underwriters that: : (a) ~~A registration statement~~ Registration statement, as amended (No. 333-213765), including a prospectus, relating to the ~~Notes~~ Debentures and certain other securities has been filed with the Securities and Exchange Commission ("the “Commission"”) under the Securities Act of ~~1933~~ 1933, as amended (the "“1933 Act"”). Such registration statement and any post-effective amendment thereto, each in the form heretofore delivered to you, ~~and, excluding exhibits thereto but including all documents incorporated by reference in~~ became effective upon filing with the ~~prospectus contained therein,~~ Commission pursuant to ~~you for each~~ Rule 462 of the ~~other Underwriters, have been declared effective by~~ rules and regulations of the Commission ~~in such form~~under the 1933 Act (the “1933 Act Regulations”), and no stop order suspending the effectiveness of such registration statement has been issued and no proceeding for that purpose or pursuant to Section 8A of the 1933 Act has been initiated or threatened by the Commission (if prepared, any preliminary prospectus supplement specifically relating to the Debentures immediately prior to the Applicable Time included in such registration statement or filed with the Commission pursuant to Rule ~~424(a~~424(b) of the ~~rules and regulations of the Commission under the~~ 1933 Act Regulations being hereinafter called a "“Preliminary Prospectus"”); the ~~various parts~~ term “Registration Statement” means the registration statement as deemed revised pursuant to Rule 430B(f)(1) of the 1933 Act Regulations on the date of such registration statement’s effectiveness for purposes of Section 11 of the 1933 Act, as such section applies to the Corporation and the Underwriters for the Debentures pursuant to Rule 430B(f)(2) of the 1933 Act Regulations (the “Effective Date”), including all exhibits thereto and including the documents incorporated by reference in the prospectus contained in the ~~registration statement~~ Registration Statement at the time such part of the ~~registration statement~~ Registration Statement became effective~~, each as amended~~ ; the term “Base Prospectus” means the prospectus filed with the Commission on the date hereof by the Corporation; and the term “Prospectus” means the Base Prospectus together with the prospectus supplement specifically relating to the Debentures prepared in accordance with the provisions of Rule 430B and promptly filed after execution and delivery of this Agreement pursuant to Rule 430B or Rule 424(b) of the 1933 Act Regulations; any information included in such Prospectus that was omitted from the Registration Statement at the time ~~such~~ it became effective but that is deemed to be a part of ~~the~~ and included in such registration statement ~~became effective, being hereinafter called the "Registration Statement"; and the final prospectus relating to the Notes, in the form first filed~~ pursuant to Rule ~~424(b) under the 1933 Act, being hereinafter called the "Prospectus";~~ 430B is referred to as “Rule 430B Information;” and any reference herein to any Registration Statement, Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference ~~therein, as of~~ therein prior to the date ~~of such Preliminary Prospectus or Prospectus, as the case may be~~hereof; any reference to any amendment or supplement to any Preliminary Prospectus or Prospectus shall be deemed to refer to and include any documents filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended (the "“1934 Act"”), and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Corporation filed pursuant to Section 13(a) or 15(d) of the 1934 Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement). For purposes of this Agreement, the term “Applicable Time” means 3:25 p.m. (New York City time) on the date hereof.

Appears in 1 contract

Representations and Warranties of the Corporation. The Corporation represents and warrants to, and agrees with, the several Underwriters that: : (a) A registration statement (No. ), including a prospectus, relating to the Notes has been filed with the Securities and Exchange Commission ("Commission") under the Securities Act of 1933 (the "1933 Act"). Such registration statement and any post-effective amendment thereto, each in the form heretofore delivered to you~~, and, excluding exhibits thereto but including all documents incorporated by reference in the prospectus contained therein, to you for each of the other Underwriters~~, have been declared effective by the Commission in such form, and no stop order suspending the effectiveness of such registration statement has been issued and no proceeding for that purpose has been initiated or threatened by the Commission (any preliminary prospectus included in such registration statement or filed with the Commission pursuant to Rule 424(a) of the rules and regulations of the Commission under the 1933 Act being hereinafter called a "Preliminary Prospectus"; the various parts of such registration statement, including all exhibits thereto and including the documents incorporated by reference in the prospectus contained in the registration statement at the time such part of the registration statement became effective, each as amended at the time such part of the registration statement became effective, being hereinafter called the "Registration Statement"; and the final prospectus relating to the Notes, in the form first filed pursuant to Rule 424(b) under the 1933 Act, being hereinafter called the "Prospectus"; and any reference herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein, as of the date of such Preliminary Prospectus or Prospectus, as the case may be; any reference to any amendment or supplement to any Preliminary Prospectus or Prospectus shall be deemed to refer to and include any documents filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended (the "1934 Act"), and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Corporation filed pursuant to Section 13(a) or 15(d) of the 1934 Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement). (b) The Registration Statement conforms and the Prospectus will conform in all material respects to the requirements of the 1933 Act and the rules and regulations thereunder ("1933 Act Regulations"), and the Registration Statement does not and the Prospectus will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, except that the foregoing does not apply to statements or omissions in any such document based upon written information furnished to the Corporation by any Underwriter specifically for use therein. (c) The documents incorporated by reference in the Prospectus, at the time they were filed with the Commission, conformed in all material respects to the requirements of the 1934 Act and the rules and regulations of the Commission thereunder (the "1934 Act Regulations"), and, when read together with the other information in the Prospectus, do not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and any documents deemed to be incorporated by reference in the Prospectus will, when they are filed with the Commission, comply in all material respects with the requirements of the 1934 Act and the 1934 Act Regulations, and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they are made, not misleading. (d) The compliance by the Corporation with all of the provisions of this Agreement and the consummation of the transactions herein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Corporation or any of its Principal Subsidiaries (as defined below) is a party or by which any of them or their respective property is bound or to which any of their property or assets is subject, nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or By-Laws of the Corporation or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Corporation or its Principal Subsidiaries or any of their respective property; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the consummation by the Corporation of the transactions contemplated by this Agreement, except for the registration under the 1933 Act of the Notes and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters. (e) Each of PanEnergy Corp, Texas Eastern Transmission Corporation and Algonquin Gas Transmission Company, each a Delaware corporation (and herein called a "Principal Subsidiary"), is a direct or indirect wholly-owned subsidiary of the Corporation.

Appears in 1 contract

Samples: Underwriting Agreement (Duke Capital Financing Trust Vi)

Representations and Warranties of the Corporation. The Corporation hereby represents and warrants toto the Agent as follows, and ~~agrees with,~~ acknowledges that the ~~several Underwriters that:~~ Agent is relying upon such representations and warranties in connection with its execution and delivery of this Agreement and the completion of the Offering: (a) ~~A registration statement~~ the Preliminary Prospectus, the Prospectus and any Prospectus Amendment, as applicable, including, in each case, the Documents Incorporated by Reference, as the case may be (~~No. )~~but excluding information and statements relating solely to the Agent and furnished by the Agent or by Agent’s Counsel in writing expressly for inclusion in the applicable document): (i) contain no misrepresentation; and (ii) constitute full, ~~including a prospectus,~~ true and plain disclosure of all material facts relating to the ~~Notes~~ Corporation and the Units; (b) the Preliminary Prospectus, the Prospectus, and any Prospectus Amendment, as applicable, including, in each case, the Documents Incorporated by Reference, as the case may be, comply in all material respects with Applicable Securities Laws, including without limitation NI 44-101; (c) there has been ~~filed~~ no material change (actual, proposed or prospective, whether financial or otherwise) from the date of the Preliminary Prospectus, Prospectus and any Prospectus Amendment, as applicable, to the time of delivery thereof, in the business, operations, revenues, capital, properties, assets, liabilities (absolute, accrued, contingent or otherwise), condition (financial or otherwise) or results of operations of the Corporation, that is not reflected or contemplated in the Preliminary Prospectus, Prospectus and any Prospectus Amendment, as applicable (including, in each case, the Documents Incorporated by Reference therein); and (d) the statistical, industry and market related data included in the Preliminary Prospectus, the Prospectus and any Prospectus Amendment, as applicable, including, in each case, the Documents Incorporated by Reference, as the case may be, is derived from sources which the Corporation reasonably believes to be accurate, reasonable and reliable, and such data agrees in all material respects with the ~~Securities~~ sources from which it was derived; (e) the Corporation is a corporation duly organized and ~~Exchange Commission ("Commission")~~ validly existing under the ~~Securities Act of 1933~~ CBCA, has all requisite corporate power and authority and is qualified and holds all Permits, necessary or required to carry on its business as now conducted and to own, lease and operate its properties and assets and no steps or proceedings have been taken by any person, voluntary or otherwise, requiring or authorizing its dissolution or winding up, and the Corporation has all requisite power and authority to enter into this Agreement (including to issue, sell and deliver the ~~"1933 Act"). Such registration statement~~ Securities) and ~~any post-effective amendment thereto, each in the form heretofore delivered~~ to ~~you, and, excluding exhibits thereto but including all documents incorporated by reference in the prospectus contained therein, to you for~~ carry out its obligations hereunder and thereunder; (f) each of the ~~other Underwriters~~execution and delivery of this Agreement, ~~have been declared effective~~ the performance by the ~~Commission in such form~~Corporation of its obligations hereunder and thereunder, the issue, sale and ~~no stop order suspending~~ delivery of the ~~effectiveness of such registration statement has been issued and no proceeding for that purpose has been initiated or threatened~~ Securities, the performance by the ~~Commission (any preliminary prospectus included in such registration statement or filed with~~ Corporation of its obligations thereunder and the ~~Commission pursuant to Rule 424(a)~~ consummation of the ~~rules~~ transactions contemplated by this Agreement, do not and ~~regulations~~ will not conflict with or result in a breach or violation of any of the ~~Commission~~ terms or provisions of, or constitute a default under (whether after notice or lapse of time or both) (A) any statute, rule or regulation applicable to the ~~1933 Act being hereinafter called a "Preliminary Prospectus";~~ Corporation or the ~~various parts of such registration statement~~Subsidiary, ~~including all exhibits thereto and including~~ including, without limitation, Applicable Securities Laws or the ~~documents incorporated by reference in the prospectus contained in the registration statement at the time such part~~ rules of the ~~registration statement became effective, each as amended at the time such part of the registration statement became effective, being hereinafter called the "Registration Statement";~~ CSE and the final prospectus relating to the Notes, in the form first filed pursuant to Rule 424(b) under the 1933 Act, being hereinafter called the "Prospectus"; and any reference herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein, as of the date of such Preliminary Prospectus or ProspectusTSXV, as the case may be; (B) the constating documents, by-laws or resolutions of the directors, shareholders or committees of the Corporation or the Subsidiary that are in effect at the date hereof; (C) any ~~reference~~ material mortgage, note, indenture, contract, agreement, joint venture, partnership, instrument, lease or other document to which the Corporation or the Subsidiary are a party or by which the Corporation or the Subsidiary is bound; or (D) any judgment, decree or order binding the Corporation or the Subsidiary, or the property or assets of the Corporation or the Subsidiary, except, in the case of clauses (A), (C) and (D), where such conflict, breach or default is not material; (g) this Agreement and all other contracts required in connection with the issuance, sale and delivery of the Securities have been or will be duly authorized and executed and delivered by the Corporation and constitute or will constitute valid and binding obligations of the Corporation enforceable against the Corporation in accordance with their respective terms, except as enforcement thereof may be limited by bankruptcy, insolvency, reorganization, moratorium and other laws relating to or affecting the rights of creditors generally, and except as limited by the application of equitable principles when equitable remedies are sought and by the fact that rights to indemnity, contribution and waiver, and the ability to sever unenforceable terms, may be limited by applicable Law; (h) the Corporation and its Subsidiary are current and up-to-date with all filings required to be made by each of them under the laws of Canada, the United States and any other jurisdictions in which they may operate, as applicable, and all filings required by the CSE or any other exchange, that would have a material adverse effect if not filed; (i) other than as set forth in the Offering Documents, the Corporation does not beneficially own or exercise control or direction over 10% or more of the outstanding voting shares of any company other than the Subsidiary, each of which is, directly or indirectly, wholly-owned by the Corporation, and all of the issued and of the issued and outstanding shares of the Subsidiary are issued as fully paid and non- assessable, free and clear of all mortgages, liens, charges, pledges, security interest encumbrances, claims or demands whatsoever, and no person has any agreement, warrant, option, right or privilege (whether present or future, contingent or absolute, pre-emptive or contractual) capable of becoming an agreement, for the purchase from the Corporation or the Subsidiary of any interest in any of the shares of the Subsidiary or for the issue or allotment of any unissued shares in the capital of the Subsidiary or any other security convertible into or exchangeable for any such shares of the Subsidiary; (j) The Subsidiary is a corporation duly organized and validly existing under the laws of its governing jurisdiction, has all requisite corporate power and authority and is qualified and holds all Permits necessary or required to carry on its business as now conducted and to own, lease and operate its properties and assets and no steps or proceedings have been taken by any person, voluntary or otherwise, requiring or authorizing its dissolution or winding up; (k) the Subsidiary has no material assets or liabilities or is party to any ~~amendment~~ material agreement, and no material revenues are booked through the Subsidiary; (l) neither the Corporation nor the Subsidiary is (A) in default or ~~supplement~~ in breach of the constating documents or resolutions of its directors or shareholders or (B) in default of any material obligations under any mortgage, note, indenture, contract, agreement, joint venture, partnership, instrument, lease or other document to which the Corporation or the Subsidiary is a party or by which the Corporation or the Subsidiary is bound; (m) other than as disclosed in the Public Record, no person is entitled to any ~~Preliminary Prospectus~~ pre- emptive or ~~Prospectus shall be deemed~~ any similar rights to ~~refer~~ subscribe for any Common Shares or other securities of the Corporation and there are no outstanding rights, warrants or options to acquire, or instruments convertible into or exchangeable for, any shares in the capital of the Corporation or the Subsidiary; (n) the minute books of each of the Corporation and ~~include any documents filed after~~ the Subsidiary are all of the minute books of the Corporation and the Subsidiary, respectively, and contain copies of all material proceedings (or certified copies thereof or drafts thereof pending approval) of the shareholders, the directors and all committees of directors of the Corporation and the Subsidiary to the date hereof and there have been no other material meetings, resolutions or proceedings of the shareholders, directors or any committees of the directors of the Corporation or the Subsidiary to the date hereof not reflected in such minute books, other than those which have been disclosed in writing to the Agent, disclosed on SEDAR or those that relate to the Closing and provided to the Agent prior to the Closing Date; (o) to the knowledge of the Corporation, none of its current directors or officers are now subject to an order or ruling of any securities regulatory authority or stock exchange prohibiting such individual from acting as a director or officer of a public company or of a company listed on a particular stock exchange; (p) the Corporation and each of the Subsidiary are, in all material respects, conducting their respective businesses in compliance with all applicable Laws, and, in particular, all applicable Environmental Laws or other lawful requirement of any governmental or regulatory bodies applicable to the Corporation or each of the Subsidiary of each jurisdiction in which its business is carried on and is, as required, licensed, registered or qualified in all jurisdictions in which it owns, leases or operates its property or carries on business to enable its business to be carried on as now conducted and its property and assets to be owned, leased and operated and all such licences, registrations and qualifications are as of the date hereof and will at the Closing Time be valid, subsisting and in good standing, except where such failure to be so qualified or the absence of any such licence, registration or qualification does not and will not have a material adverse effect; (q) the Corporation and the Subsidiary possess all Permits, except where lack of possession of such ~~Preliminary Prospectus~~ Permit does not and will not have a material adverse effect and, neither the Corporation nor the Subsidiary has received any notice of proceedings relating to the withdrawal, cancellation, suspension, revocation or ~~Prospectus~~modification of any such Permit; (r) without limiting the generality of subsections 8(p) and 8(q), the Corporation holds all registrations, and has all approvals and other authorizations, required by the Canadian Food Inspection Agency (the “CFIA”), the United States Department of Agriculture (the “USDA”), the United States Environmental Protection Agency (the “USEPA”) and any other foreign, state or local agency or body, necessary for the conduct of the business of the Corporation and the Subsidiary, as applicable, as such business is currently conducted, and, neither the Corporation nor the Subsidiary has received any notice relating to the withdrawal, suspension or modification of any such registration, approval or authorization; (s) all of the descriptions in the Offering Documents of the legal and governmental proceedings by or before the CFIA, the USDA and the USEPA or any other foreign, state or local government body exercising comparable authority are accurate and complete in all material respects; (t) all studies and tests conducted by or on behalf of the Corporation have been conducted and are being conducted in all material respects in accordance with experimental protocols, procedures and controls pursuant to generally accepted professional scientific standards, institutional review board requirements and applicable Laws; the descriptions of the results of such studies and tests contained or to be contained in the Offering Documents are accurate, complete and fair, in all material respects, and the Corporation has no knowledge of any other studies or tests, the results of which call into question the results described or referred to in the Offering Documents; (u) no consent, approval, permit, authorization, order or filing of or with any court or governmental agency or body of Canada or of any Selling Jurisdiction is required by the Corporation for the execution and delivery of and the performance by the Corporation of its obligations under this Agreement, except as may be required under Applicable Securities Laws or the rules of the CSE and of the TSXV, as the case may be; (v) to the Corporation’s knowledge, ~~under the Securities Exchange Act~~ it is not aware of ~~1934~~any legislation, ~~as amended~~ or proposed legislation (~~the "1934 Act"~~published by a legislative body), and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Corporation filed pursuant to Section 13(a) or 15(d) of the 1934 Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement).which it anticipates will have a material adverse effect;

Appears in 1 contract

Samples: Agency Agreement

Representations and Warranties of the Corporation. The Corporation represents and warrants to, and agrees with, the several Underwriters that: : (a) ~~A registration~~ Registration statement (No. 333-146483), including a prospectus, relating to the Notes and certain other securities has been filed with the Securities and Exchange Commission ("the “Commission"”) under the Securities Act of ~~1933~~ 1933, as amended (the "“1933 Act"”). Such registration statement and any post-effective amendment thereto, each in the form heretofore delivered to you, ~~and, excluding exhibits thereto but including all documents incorporated by reference in~~ became effective upon filing with the ~~prospectus contained therein,~~ Commission pursuant to ~~you for each~~ Rule 462 of the ~~other Underwriters, have been declared effective by~~ rules and regulations of the Commission ~~in such form~~under the 1933 Act (the “1933 Act Regulations”), and no stop order suspending the effectiveness of such registration statement has been issued and no proceeding for that purpose or pursuant to Section 8A of the 1933 Act has been initiated or threatened by the Commission (if prepared, any preliminary prospectus supplement specifically relating to the Notes immediately prior to the Applicable Time (as defined below) included in such registration statement or filed with the Commission pursuant to Rule ~~424(a~~424(b) of the ~~rules and regulations of the Commission under the~~ 1933 Act Regulations being hereinafter called a "“Preliminary Prospectus"”); the ~~various parts~~ term “Registration Statement” means the registration statement as deemed revised pursuant to Rule 430B(f)(1) of the 1933 Act Regulations on the date of such registration statement’s effectiveness for purposes of Section 11 of the 1933 Act, as such section applies to the Corporation and the Underwriters for the Notes pursuant to Rule 430B(f)(2) of the 1933 Act Regulations (the “Effective Date”), including all exhibits thereto and including the documents incorporated by reference in the prospectus contained in the ~~registration statement~~ Registration Statement at the time such part of the ~~registration statement~~ Registration Statement became effective~~, each as amended~~ ; the term “Base Prospectus” means the prospectus filed with the Commission on the date hereof by the Corporation; and the term “Prospectus” means the Base Prospectus together with the prospectus supplement specifically relating to the Notes prepared in accordance with the provisions of Rule 430B and promptly filed after execution and delivery of this Agreement pursuant to Rule 430B or Rule 424(b) of the 1933 Act Regulations; any information included in such Prospectus that was omitted from the Registration Statement at the time ~~such~~ it became effective but that is deemed to be a part of ~~the~~ and included in such registration statement ~~became effective, being hereinafter called the "Registration Statement"; and the final prospectus relating to the Notes, in the form first filed~~ pursuant to Rule ~~424(b) under the 1933 Act, being hereinafter called the "Prospectus";~~ 430B is referred to as “Rule 430B Information;” and any reference herein to any Registration Statement, Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference ~~therein, as of~~ therein prior to the date ~~of such Preliminary Prospectus or Prospectus, as the case may be~~hereof; any reference to any amendment or supplement to any Preliminary Prospectus or Prospectus shall be deemed to refer to and include any documents filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended (the "“1934 Act"”), and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Corporation filed pursuant to Section 13(a) or 15(d) of the 1934 Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement). For purposes of this Agreement, the term “Applicable Time” means 4:52 p.m. (New York Time) on the date hereof.

Appears in 1 contract

Representations and Warranties of the Corporation. The Corporation represents and warrants to, and agrees with, the several Underwriters that: : (a) A registration statement (No. 333- , which also constitutes a post- effective amendment to a previous registration statement No. 333-52204), including a combined prospectus, relating to the ~~Notes~~ Bonds and certain other securities has been filed with the Securities and Exchange Commission ("Commission") under the Securities Act of ~~1933~~ 1933, as amended (the "1933 Act"). Such registration statement and any post-effective amendment thereto, each in the form heretofore delivered to you, and, excluding exhibits thereto but including all documents incorporated by reference in the prospectus contained therein, ~~to you~~ for each of the other Underwriters, have been declared effective by the Commission in such form, and no stop order suspending the effectiveness of such registration statement has been issued and no proceeding for that purpose has been initiated or threatened by the Commission (any preliminary prospectus included in such registration statement or filed with the Commission pursuant to Rule 424(a) of the rules and regulations of the Commission under the 1933 Act ("1933 Act Regulations") being hereinafter called a "Preliminary Prospectus"; the various parts of such registration statement, including all exhibits thereto and including the documents incorporated by reference in the prospectus contained in the registration statement at the time such part of the registration statement became effective, each as amended at the time such part of the registration statement became effective, being hereinafter called the "Registration Statement"; and the final prospectus relating to the ~~Notes~~Bonds, in the form first filed pursuant to Rule 424(b) under the 1933 ~~Act~~Act Regulations, being hereinafter called the "Prospectus"; and any reference herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein, as of the date of such Preliminary Prospectus or Prospectus, as the case may be; any reference to any amendment or supplement to any Preliminary Prospectus or Prospectus shall be deemed to refer to and include any documents filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended (the "1934 Act"), and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Corporation filed pursuant to Section 13(a) or 15(d) of the 1934 Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement). (b) The Registration Statement conforms and the Prospectus will conform in all material respects to the requirements of the 1933 Act and the 1933 Act Regulations, and the Registration Statement does not and the Prospectus will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the Corporation makes no warranty or representation to the Underwriters with respect to any statements or omissions made in reliance upon and in conformity with written information furnished to the Corporation by any Underwriter specifically for use therein. (c) The documents incorporated by reference in the Prospectus, at the time they were filed with the Commission, complied in all material respects with the requirements of the 1934 Act and the rules and regulations of the Commission thereunder (the "1934 Act Regulations"), and, when read together with the other information in the Prospectus, do not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, and any documents deemed to be incorporated by reference in the Prospectus will, when they are filed with the Commission, comply in all material respects with the requirements of the 1934 Act and the 1934 Act Regulations, and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the Corporation makes no warranty or representation to the Underwriters with respect to any statements or omissions made in reliance upon and in conformity with written information furnished to the Corporation by any Underwriter specifically for use therein. (d) The compliance by the Corporation with all of the provisions of this Agreement has been duly authorized by all necessary corporate action and the consummation of the transactions herein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Corporation or any of its Principal Subsidiaries (as hereinafter defined) is a party or by which any of them or their respective property is bound or to which any of their property or assets is subject that would have a material adverse effect on the business, financial condition or results of operations of the Corporation and its subsidiaries, taken as a whole, nor will such action result in any violation of the provisions of the Restated Articles of Incorporation or By- Laws of the Corporation or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Corporation or its Principal Subsidiaries or any of their respective property that would have a material adverse effect on the business, financial condition or results of operations of the Corporation and its subsidiaries, taken as a whole; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the consummation by the Corporation of the transactions contemplated by this Agreement, except for authorization by the North Carolina Utilities Commission and The Public Service Commission of South Carolina and the registration under the 1933 Act of the Bonds, qualification under the Trust Indenture Act of 1939 and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Bonds by the Underwriters. (e) This Agreement has been duly authorized, executed and delivered by the Corporation. (f) Each of Duke Capital Corporation, PanEnergy Corp, Duke Energy Natural Gas Corporation and Texas Eastern Transmission Corporation, each a Delaware corporation (and herein called a "Principal Subsidiary"), is a direct or indirect wholly owned subsidiary of the Corporation.

Appears in 1 contract

Samples: Underwriting Agreement (Duke Energy Capital Trust V)

Representations and Warranties of the Corporation. The Corporation represents and warrants to, and agrees with, the several Underwriters that: : (a) A registration statement (No. )333- , which also constitutes a post- effective amendment to a previous registration statement No. 333-52204, including a combined prospectus, relating to the Notes and certain other securities has been filed with the Securities and Exchange Commission ("Commission") under the Securities Act of ~~1933~~ 1933, as amended (the "1933 Act"). Such registration statement and any post-effective amendment thereto, each in the form heretofore delivered to you, and, excluding exhibits thereto but including all documents incorporated by reference in the prospectus contained therein, ~~to you~~ for each of the other Underwriters, have been declared effective by the Commission in such form, and no stop order suspending the effectiveness of such registration statement has been issued and no proceeding for that purpose has been initiated or threatened by the Commission (any preliminary prospectus included in such registration statement or filed with the Commission pursuant to Rule 424(a) of the rules and regulations of the Commission under the 1933 Act ("1933 Act Regulations") being hereinafter called a "Preliminary Prospectus"; the various parts of such registration statement, including all exhibits thereto and including the documents incorporated by reference in the prospectus contained in the registration statement at the time such part of the registration statement became effective, each as amended at the time such part of the registration statement became effective, being hereinafter called the "Registration Statement"; and the final prospectus relating to the Notes, in the form first filed pursuant to Rule 424(b) under the 1933 ~~Act~~Act Regulations, being hereinafter called the "Prospectus"; and any reference herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein, as of the date of such Preliminary Prospectus or Prospectus, as the case may be; any reference to any amendment or supplement to any Preliminary Prospectus or Prospectus shall be deemed to refer to and include any documents filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended (the "1934 Act"), and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Corporation filed pursuant to Section 13(a) or 15(d) of the 1934 Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement). (b) The Registration Statement conforms and the Prospectus will conform in all material respects to the requirements of the 1933 Act and the 1933 Act Regulations, and the Registration Statement does not and the Prospectus will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the Corporation makes no warranty or representation to the Underwriters with respect to any statements or omissions made in reliance upon and in conformity with written information furnished to the Corporation by any Underwriter specifically for use therein or any information set forth in the Prospectus under the caption "Description of the Series Junior Subordinated Notes - Book-Entry Only Issuance - The Depository Trust Company." (c) The documents incorporated by reference in the Prospectus, at the time they were filed with the Commission, complied in all material respects with the requirements of the 1934 Act and the rules and regulations of the Commission thereunder (the "1934 Act Regulations"), and, when read together with the other information in the Prospectus, do not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, and any documents deemed to be incorporated by reference in the Prospectus will, when they are filed with the Commission, comply in all material respects with the requirements of the 1934 Act and the 1934 Act Regulations, and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading, except that the Corporation makes no warranty or representation to the Underwriters with respect to any statements or omissions made in reliance upon and in conformity with written information furnished to the Corporation by any Underwriter specifically for use therein or any information set forth in the Prospectus under the caption "Description of the Series Junior Subordinated Notes - Book-Entry Only Issuance - The Depository Trust Company." (d) The compliance by the Corporation with all of the provisions of this Agreement has been duly authorized by all necessary corporate action and the consummation of the transactions herein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Corporation or any of its Principal Subsidiaries (as hereinafter defined) is a party or by which any of them or their respective property is bound or to which any of their property or assets is subject that would have a material adverse effect on the business, financial condition or results of operations of the Corporation and its subsidiaries, taken as a whole, nor will such action result in any violation of the provisions of the Restated Articles of Incorporation or By- Laws of the Corporation or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Corporation or its Principal Subsidiaries or any of their respective property that would have a material adverse effect on the business, financial condition or results of operations of the Corporation and its subsidiaries, taken as a whole; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the consummation by the Corporation of the transactions contemplated by this Agreement, except for authorization by the North Carolina Utilities Commission and The Public Service Commission of South Carolina and the registration under the 1933 Act of the Notes, qualification under the Trust Indenture Act of 1939 and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters. (e) This Agreement has been duly authorized, executed and delivered by the Corporation. (f) Each of Duke Capital Corporation, PanEnergy Corp, Duke Energy Natural Gas Corporation and Texas Eastern Transmission Corporation, each a Delaware corporation (and herein called a "Principal Subsidiary"), is a direct or indirect wholly owned subsidiary of the Corporation.

Appears in 1 contract

Samples: Underwriting Agreement (Duke Energy Capital Trust V)

Representations and Warranties of the Corporation. The Corporation represents and warrants to, and agrees with, the several Underwriters that: : (a) A registration ~~statement~~ statement, as amended (No. 333-213765), including a prospectus, relating to the ~~Notes~~ Shares and certain other securities has been filed with the Securities and Exchange Commission ("the “Commission"”) under the Securities Act of ~~1933~~ 1933, as amended (the "“1933 Act"”). Such registration statement and any post-effective amendment thereto, each in the form heretofore delivered to you, ~~and, excluding exhibits thereto but including all documents incorporated by reference in~~ became effective upon filing with the ~~prospectus contained therein,~~ Commission pursuant to ~~you for each~~ Rule 462 of the ~~other Underwriters, have been declared effective by~~ rules and regulations of the Commission ~~in such form~~under the 1933 Act (the “1933 Act Regulations”), and no stop order suspending the effectiveness of such registration statement has been issued and no proceeding for that purpose or pursuant to Section 8A of the 1933 Act has been initiated or threatened by the Commission (if prepared, any preliminary prospectus supplement specifically relating to the Shares immediately prior to the Applicable Time included in such registration statement or filed with the Commission pursuant to Rule ~~424(a~~424(b) of the ~~rules and regulations of the Commission under the~~ 1933 Act Regulations being hereinafter called a "“Preliminary Prospectus"”); the ~~various parts~~ term “Registration Statement” means the registration statement as deemed revised pursuant to Rule 430B(f)(1) of the 1933 Act Regulations on the date of such registration statement’s effectiveness for purposes of Section 11 of the 1933 Act, as such section applies to the Corporation and the Underwriters for the Shares pursuant to Rule 430B(f)(2) of the 1933 Act Regulations (the “Effective Date”), including all exhibits thereto and including the documents incorporated by reference in the prospectus contained in the ~~registration statement~~ Registration Statement at the time such part of the ~~registration statement~~ Registration Statement became effective~~, each as amended~~ ; the term “Base Prospectus” means the prospectus filed with the Commission on the date hereof by the Corporation; and the term “Prospectus” means the Base Prospectus together with the prospectus supplement specifically relating to the Shares prepared in accordance with the provisions of Rule 430B and promptly filed after execution and delivery of this Agreement pursuant to Rule 430B or Rule 424(b) of the 1933 Act Regulations; any information included in such Prospectus that was omitted from the Registration Statement at the time ~~such~~ it became effective but that is deemed to be a part of ~~the~~ and included in such registration statement ~~became effective, being hereinafter called the "Registration Statement"; and the final prospectus relating to the Notes, in the form first filed~~ pursuant to Rule ~~424(b) under the 1933 Act, being hereinafter called the "Prospectus";~~ 430B is referred to as “Rule 430B Information;” and any reference herein to any Registration Statement, the Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference ~~therein, as of~~ therein prior to the date ~~of such Preliminary Prospectus or Prospectus, as the case may be~~hereof; any reference to any amendment or supplement to ~~any~~ the Preliminary Prospectus or Prospectus shall be deemed to refer to and include any documents filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended (the "“1934 Act"”), and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Corporation filed pursuant to Section 13(a) or 15(d) of the 1934 Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement). For purposes of this Agreement, the term “Applicable Time” means 4:45 p.m. (New York City time) on the date hereof.

Appears in 1 contract

Representations and Warranties of the Corporation. The Corporation represents and warrants ~~to,~~ to and agrees ~~with,~~ with the ~~several~~ Underwriters that: : (a) ~~A registration statement~~ it is a not-for-profit corporation duly created and validly existing and in good standing under Chapter 617, Florida Statutes and has all necessary licenses and permits to conduct its business as described in the Preliminary Offering Statement and the Offering Statement and to act as lessee and sublessee under the Series 2004 Ground Lease and as lessor in connection with the lease-purchase by the School Board of the Series 2004- 1 Facilities; (~~No. ),~~ b) both at the time of its acceptance hereof and at all times during the period from the date hereof up to and including a ~~prospectus, relating~~ date which is the later of (i) receipt of notice from the Manager pursuant to Section 3(c) hereof that the ~~Notes has been~~ Offering Statement is no longer required to be delivered under the Rule or (ii) 90 days after the date of the Closing (or 25 days after the date of the Closing if the Offering Statement is filed with the ~~Securities~~ MSRB in electronic format at or prior to Closing), the statements and Exchange Commission ("Commission") under the Securities Act of 1933 (the "1933 Act"). Such registration statement and any post-effective amendment thereto, each in the form heretofore delivered to you, and, excluding exhibits thereto but including all documents incorporated by reference in the prospectus contained therein, to you for each of the other Underwriters, have been declared effective by the Commission in such form, and no stop order suspending the effectiveness of such registration statement has been issued and no proceeding for that purpose has been initiated or threatened by the Commission (any preliminary prospectus included in such registration statement or filed with the Commission pursuant to Rule 424(a) of the rules and regulations of the Commission under the 1933 Act being hereinafter called a "Preliminary Prospectus"; the various parts of such registration statement, including all exhibits thereto and including the documents incorporated by reference in the prospectus information contained in the ~~registration statement at~~ Offering Statement with respect to the ~~time such part~~ Corporation are and are expected to be, to the best of its knowledge after due inquiry, true, correct and complete in all material respects and the Offering Statement, to the knowledge of the ~~registration statement became effective~~Corporation after due inquiry, each as amended at the time such part of the registration statement became effective, being hereinafter called the "Registration Statement"; and the final prospectus relating to the Notes, in the form first filed pursuant to Rule 424(b) under the 1933 Act, being hereinafter called the "Prospectus"; and any reference herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein, does not as of the date of ~~such Preliminary Prospectus or Prospectus~~acceptance hereof and is not expected to, as at any time during the ~~case may be; any reference to any amendment or supplement to any Preliminary Prospectus or Prospectus shall be deemed to refer~~ period from the date hereof up to and ~~include any documents filed~~ including the later of (i) receipt of notice from the Manager pursuant to Section 3(c) hereof that the Offering Statement is no longer required to be delivered under the Rule or (ii) 90 days after the date of the Closing (or 25 days after the date of the Closing if the Offering Statement is filed with the MSRB in electronic format at or prior to Closing), contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or which is necessary to make the statements and information therein, in light of the circumstances under which they were made, not misleading in any material respect; (c) if the Offering Statement is supplemented or amended pursuant to Section 10 hereof, at the time of each supplement or amendment thereto and (unless subsequently again supplemented or amended pursuant to Section 10 hereof) at all times during the period from the date of such ~~Preliminary Prospectus~~ supplement or ~~Prospectus~~amendment to and including a date which is the later of (i) receipt of notice from the Manager pursuant to Section 3(c) hereof that the Offering Statement is no longer required to be delivered under the Rule or (ii) 90 days after the date of the Closing (or 25 days after the date of the Closing if the Offering Statement is filed with the MSRB in electronic format at or prior to Closing), the Offering Statement as so supplemented or amended will not contain any untrue statement of a material fact or omit any statement or information that is necessary to make the statements contained therein, in the light of the circumstances under which they were made, not misleading; (d) the Corporation will cooperate with the Underwriters and their counsel, and use its best efforts to cause the School Board to cooperate with the Underwriters and their counsel, in taking all necessary action to qualify the Series 2019A Certificates for offer and sale under the securities or “blue sky” laws of such jurisdictions as the ~~case~~ Underwriters may bereasonably request; provided however that neither the Corporation nor the School Board will be required to execute a special or general consent to service of process, pay any fee or qualify as a foreign corporation in connection with such qualification; (e) the execution and delivery by the Corporation of this Certificate Purchase Agreement, the Series 2019A Trust Agreement and the Series 2004-1 Lease were duly approved by the Corporation’s Board of Directors by Resolution No. 19- dated June 25, 2019 (the “Corporation Resolution”), in complete conformity with the Articles of Incorporation and the By-Laws of the Corporation and Florida law; (f) the approval, execution and delivery of this Certificate Purchase Agreement, the Series 2019A Trust Agreement and the Series 2004-1 Lease, adoption of the Corporation Resolution and compliance with the provisions thereof and hereof, under the ~~Securities Exchange Act~~ circumstances contemplated thereby and hereby, do not and will not conflict with, constitute a breach of ~~1934~~or default under, ~~as amended (~~or result in the ~~"1934 Act"), and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; and~~ creation of a lien on any ~~reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report~~ property of the Corporation ~~filed~~ (except as contemplated therein) pursuant to ~~Section 13(a)~~ applicable law or ~~15(d)~~ any indenture, bond resolution, deed of trust, mortgage, agreement or other instrument to which the Corporation is a party, except as described in the Offering Statement, or conflict with or violate any applicable law, administrative rule, regulation, judgment, court order or consent decree to which the Corporation is subject which in any such event would have a material adverse effect on the prepayment of the ~~1934 Act after~~ Basic Lease Payments represented by the ~~effective date~~ Series 2014A Certificates to be prepaid upon issuance of the ~~Registration Statement that is incorporated by reference~~ Series 2019A Certificates (collectively, the “Refunded Certificates”), issuance of the Series 2019A Certificates or any of the transactions contemplated thereby; (g) except as disclosed in the ~~Registration~~ Offering Statement, there is no claim, action, suit, proceeding, inquiry or investigation, at law or in equity, before or by any court, governmental agency, or public board or body, pending or, to the best of its knowledge, threatened (i) contesting the corporate existence or powers of the Corporation or the titles of the officers of the Corporation to their respective offices, (ii) seeking to prohibit, restrain or enjoin the collection of moneys under the Series 2004-1 Lease, the prepayment of the Basic Lease Payments represented by the Refunded Certificates or the application of the proceeds of the Series 2019A Certificates in the manner contemplated herein and in the Offering Statement, wherein an unfavorable decision, ruling or finding would materially adversely affect the financial position of the Corporation or the operation of its facilities or the validity or enforceability of the Series 2019A Certificates, the Series 2014A Trust Agreement or the Series 2019A Trust Agreement (such Trust Agreements hereinafter referred to collectively as the “Trust Agreements”), the Series 2004 Ground Lease, the Series 2004-1 Lease, the Series 2004 Assignment Agreement, the Corporation Resolution or this Certificate Purchase Agreement (collectively, the “Corporation Documents”), (iii) contesting or affecting the validity of any of the Corporation Documents, (iv) contesting in any way the completeness or accuracy of the Offering Statement (nor, to the best knowledge of the Corporation is there any basis therefor), or (v) challenging the right of the Corporation to act as lessee or sublessee or as sublessor under the Series 2004 Ground Lease or as lessor in connection with the lease-purchase by the School Board of any of the Series 2004-1 Facilities or to prepay any of the Refunded Certificates; (h) when duly executed and delivered at or prior to the Closing in accordance with the provisions of this Certificate Purchase Agreement, the Corporation Documents will have been duly authorized, executed and delivered by the Corporation and will constitute legal, valid and binding agreements of the Corporation enforceable in accordance with their terms, subject to applicable bankruptcy, moratorium or similar laws relating to the enforcement of creditors’ rights generally and to the application of general principles of equity; (i) when duly executed and delivered at the Closing in accordance with the provisions of this Certificate Purchase Agreement, the Series 2019A Certificates will constitute evidence of legal, valid and binding undivided proportionate interests in the Corporation’s rights to receive Basic Lease Payments pursuant to the Series 2004-1 Lease, on a parity with the Certificates of Participation, Series 2012A, enforceable in accordance with their terms, subject to applicable bankruptcy, moratorium or similar laws relating to the enforcement of creditors’ rights generally and to the application of general principles of equity; (j) except as otherwise described in the Offering Statement and except as may be required by the “blue sky” or other securities laws of any of the jurisdictions where the Series 2019A Certificates may be sold, the Corporation has received and there remains currently in full force and effect, or will receive prior to the delivery of the Series 2019A Certificates, all governmental consents and approvals that would constitute a condition precedent to, or the absence of which would materially adversely affect, the performance by the Corporation of its obligations hereunder or under any of the Corporation Documents; and (k) the Corporation acknowledges and agrees that (i) the purchase and sale of the Series 2019A Certificates pursuant to this Certificate Purchase Agreement is an arm’s- length commercial transaction among the Corporation, the School Board and the Underwriters, (ii) in connection with such transaction and with the discussions, undertakings and procedures leading up to the consummation of such transaction, the Manager is and has been acting solely as a principal and not as a municipal advisor, financial advisor, agent or fiduciary of the Corporation and the Manager has financial and other interests that differ from those of the Corporation, (iii) the Manager has not assumed an advisory or fiduciary responsibility in favor of the Corporation with respect to any of the transactions contemplated hereby or the discussions, undertakings and procedures leading thereto (irrespective of whether the Manager or any of the Underwriters have provided other services or is currently providing other services to the Corporation on other matters) and the Underwriters have no obligation to the Corporation with respect to any of the transactions contemplated hereby except the obligations expressly set forth in this Certificate Purchase Agreement and (iv) the Corporation has consulted its own legal, financial, accounting, tax and other advisors to the extent it has deemed appropriate and has in fact retained advisors, as set forth in the Offering Statement, to provide legal, financial, accounting, tax and other consultation and advice in connection with the issuance of the Series 2019A Certificates.

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Representations and Warranties of the Corporation. The Corporation represents and warrants to, and agrees with, the several Underwriters that: : (a) A registration statement (No. ), including a prospectus, relating to the Notes has been filed with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933 (the "1933 Act"). Such registration statement and any post-effective amendment thereto, each in the form heretofore delivered to you~~, and, excluding exhibits thereto but including all documents incorporated by reference in the prospectus contained therein, to you for each of the other Underwriters~~, have been declared effective by the Commission in such form, and no stop order suspending the effectiveness of such registration statement has been issued and no proceeding for that purpose has been initiated or threatened by the Commission (any preliminary prospectus included in such registration statement or filed with the Commission pursuant to Rule 424(a) of the rules and regulations of the Commission under the 1933 Act being hereinafter called a "Preliminary Prospectus"; the various parts of such registration statement, including all exhibits thereto and including the documents incorporated by reference in the prospectus contained in the registration statement at the time such part of the registration statement became effective, each as amended at the time such part of the registration statement became effective, being hereinafter called the "Registration Statement"; and the final prospectus relating to the Notes, in the form first filed pursuant to Rule 424(b) under the 1933 Act, being hereinafter called the "Prospectus"; and any reference herein to any Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein, as of the date of such Preliminary Prospectus or Prospectus, as the case may be; any reference to any amendment or supplement to any Preliminary Prospectus or Prospectus shall be deemed to refer to and include any documents filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended (the "1934 Act"), and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Corporation filed pursuant to Section 13(a) or 15(d) of the 1934 Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement). (b) The Registration Statement conforms and the Prospectus will conform in all material respects to the requirements of the 1933 Act and the rules and regulations thereunder ("1933 Act Regulations"), and the Registration Statement does not and the Prospectus will not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading, except that the foregoing does not apply to statements or omissions in any such document based upon written information furnished to the Corporation by any Underwriter specifically for use therein. (c) The documents incorporated by reference in the Prospectus, at the time they were filed with the Commission, conformed in all material respects to the requirements of the 1934 Act and the rules and regulations of the Commission thereunder (the "1934 Act Regulations"), and, when read together with the other information in the Prospectus, do not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and any documents deemed to be incorporated by reference in the Prospectus will, when they are filed with the Commission, comply in all material respects with the requirements of the 1934 Act and the 1934 Act Regulations, and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they are made, not misleading. (d) The compliance by the Corporation with all of the provisions of this Agreement and the consummation of the transactions herein contemplated will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Corporation or any of its Principal Subsidiaries (as defined below) is a party or by which any of them or their respective property is bound or to which any of their property or assets is subject, nor will such action result in any violation of the provisions of the Restated Certificate of Incorporation or By-Laws of the Corporation or any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Corporation or its Principal Subsidiaries or any of their respective property; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the consummation by the Corporation of the transactions contemplated by this Agreement, except for the registration under the 1933 Act of the Notes and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the purchase and distribution of the Notes by the Underwriters. (e) Each of PanEnergy Corp, Texas Eastern Transmission Corporation and Algonquin Gas Transmission Company, each a Delaware corporation (and herein called a "Principal Subsidiary"), is a direct or indirect wholly-owned subsidiary of the Corporation.

Appears in 1 contract

Samples: Underwriting Agreement (Duke Capital Financing Trust Vi)

Representations and Warranties of the Corporation. The Corporation represents and warrants to, and agrees with, the several Underwriters that: : (a) A registration statement (No. 333-267583), including a prospectus, relating to the Notes and certain other securities has been filed with the Securities and Exchange Commission ("the “Commission"”) under the Securities Act of ~~1933~~ 1933, as amended (the "“1933 Act"”). Such registration statement and any post-effective amendment thereto, each in the form heretofore delivered to you, ~~and, excluding exhibits thereto but including all documents incorporated by reference in~~ became effective upon filing with the ~~prospectus contained therein,~~ Commission pursuant to ~~you for each~~ Rule 462 of the ~~other Underwriters, have been declared effective by~~ rules and regulations of the Commission ~~in such form~~under the 1933 Act (the “1933 Act Regulations”), and no stop order suspending the effectiveness of such registration statement has been issued and no proceeding for that purpose or pursuant to Section 8A of the 1933 Act has been initiated or threatened by the Commission (if prepared, any preliminary prospectus supplement specifically relating to the Notes immediately prior to the Applicable Time included in such registration statement or filed with the Commission pursuant to Rule ~~424(a~~424(b) of the ~~rules and regulations of the Commission under the~~ 1933 Act Regulations being hereinafter called a "“Preliminary Prospectus"”); the ~~various parts~~ term “Registration Statement” means the registration statement as deemed revised pursuant to Rule 430B(f)(1) of the 1933 Act Regulations on the date of such registration statement’s effectiveness for purposes of Section 11 of the 1933 Act, as such section applies to the Corporation and the Underwriters for the Notes pursuant to Rule 430B(f)(2) of the 1933 Act Regulations (the “Effective Date”), including all exhibits thereto and including the documents incorporated by reference in the prospectus contained in the ~~registration statement~~ Registration Statement at the time such part of the ~~registration statement~~ Registration Statement became effective~~, each as amended~~ ; the term “Base Prospectus” means the prospectus filed with the Commission on the date hereof by the Corporation; and the term “Prospectus” means the Base Prospectus together with the prospectus supplement specifically relating to the Notes prepared in accordance with the provisions of Rule 430B and promptly filed after execution and delivery of this Agreement pursuant to Rule 430B or Rule 424(b) of the 1933 Act Regulations; any information included in such Prospectus that was omitted from the Registration Statement at the time ~~such~~ it became effective but that is deemed to be a part of ~~the~~ and included in such registration statement ~~became effective, being hereinafter called the "Registration Statement"; and the final prospectus relating to the Notes, in the form first filed~~ pursuant to Rule ~~424(b) under the 1933 Act, being hereinafter called the "Prospectus";~~ 430B is referred to as “Rule 430B Information;” and any reference herein to ~~any~~ the Registration Statement, the Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein, ~~as of~~ prior to the date ~~of such Preliminary Prospectus or Prospectus, as the case may be~~hereof; any reference to any amendment or supplement to any Preliminary Prospectus or Prospectus shall be deemed to refer to and include any documents filed after the date of such Preliminary Prospectus or Prospectus, as the case may be, under the Securities Exchange Act of 1934, as amended (the "“1934 Act"”), and incorporated by reference in such Preliminary Prospectus or Prospectus, as the case may be; and any reference to any amendment to the Registration Statement shall be deemed to refer to and include any annual report of the Corporation filed pursuant to Section 13(a) or 15(d) of the 1934 Act after the effective date of the Registration Statement that is incorporated by reference in the Registration Statement). For purposes of this Agreement, the term “Applicable Time” means 12:00 p.m. (New York City time)/5:00 p.m. (London time) on the date hereof.

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