Conditions of Obligation. Your obligation to solicit offers to purchase the Securities in your capacity as agent of the Company and your obligation to purchase Securities as principal pursuant to any Terms Agreement or otherwise and the obligations of purchasers to purchase Securities pursuant to purchase offers solicited by you and accepted by the Company will be subject to the accuracy of the representations and warranties on the part of the Company herein, to the accuracy of the statements of the Company’s officers made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by the Company of all covenants and agreements herein contained on its part to be performed and observed (in the case of an Agent’s obligation to solicit offers to purchase Securities, at the time of such solicitation, and, in the case of an Agent’s or any other purchaser’s obligation to purchase Securities, at the time the Company accepts the offer to purchase such Securities and at the applicable Settlement Date) and (in each case) to the following additional conditions precedent: (a) At the Closing Time and at each Settlement Date with respect to any applicable Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received: (i) The opinion or opinions (including the 10b-5 letter), dated as of such time, of Xxxxx Xxxxx LLP, counsel to the Company, in a form and substance satisfactory to you, to the effect set forth in Exhibit C hereto. (ii) The opinion or opinions, dated as of such time, of the General Counsel of the Company, in a form and substance satisfactory to you, to the effect set forth in Exhibit D hereto. (iii) The opinion or opinions of your counsel, relating to the validity of the Securities, the Indentures, this Agreement, such other matters as the Agent or Agents receiving such opinion may request and the Registration Statement, the General Disclosure Package (if applicable) and the Prospectus. (b) At the Closing Time and at each Settlement Date with respect to any Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received a certificate of the Chairman, Vice Chairman, President or a Vice President of the Company, dated as of the Closing Time and, if called for by such Terms Agreement, dated as of the Settlement Date for such transaction, in each case, to the effect (i) that there has been no downgrading, nor any notice given of any potential or intended downgrading, or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any nationally recognized statistical rating organization since the date of the Terms Agreement (if such certificate is called for by such Terms Agreement), (ii) that the representations and warranties of the Company contained in Section 1 are true and correct with the same force and effect as though expressly made at and as of the date of such certificate, (iii) that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied pursuant to this Agreement at or prior to the date of such certificate and (iv) that, to the best of the Company’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission. (c) At the Closing Time, at the date of any Terms Agreement and on the applicable Settlement Date with respect to any such Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received from each of (i) Ernst & Young LLP (or another nationally recognized firm of independent public accountants) and (ii) Deloitte & Touche LLP a letter, dated as of the Closing Time or the date of the Terms Agreement, and a bring-down letter, dated as of such Settlement Date, as applicable, in a form and substance satisfactory to you, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to certain financial information contained in or incorporated by reference into the General Disclosure Package and the Prospectus, and confirming that they are independent public accountants with respect to the Company and its subsidiaries and, if applicable, MUFG Union Bank, respectively, within the meaning of the 1933 Act and the 1933 Act Regulations. All financial statements and schedules included in materials incorporated by reference in the General Disclosure Package and the Prospectus shall be deemed included in the General Disclosure Package and the Prospectus for purposes of this subsection. (d) At the Closing Time and at each Settlement Date with respect to any Terms Agreement to which you are a party, if called for by such Terms Agreement, the counsel for the Agents shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be satisfactory in a form and substance to the Agents and their counsel. Your obligation to solicit offers to purchase the Securities in your capacity as Agent for the Company, your obligation to purchase Securities as principal pursuant to any Terms Agreement or otherwise and the obligations of purchasers to purchase Securities pursuant to purchase offers solicited by you and accepted by the Company will be subject to the following further conditions: (i) there shall not have been, since the date of such Terms Agreement or since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, any Material Adverse Effect, other than as set forth in the General Disclosure Package and the Prospectus, as amended or supplemented at the time of such solicitation or at the time such offer to purchase was made, and (ii) there shall not have occurred any outbreak or escalation of hostilities or any material change in financial markets or other calamity or crisis (including, without limitation, an act of terrorism) the effect of which is such as to make it, in your judgment (or, in the case of a syndicated issue, in the judgment of the book-running lead manager(s)), impracticable or inadvisable to market the Securities or enforce contracts for the sale of the Securities, and (iii) trading in securities of the Company shall not have been suspended by the Commission or a national securities exchange, nor shall trading generally on either the Nasdaq Global Market or the New York Stock Exchange have been suspended, or minimum or maximum prices for trading of securities generally have been fixed, or maximum ranges for prices for securities (other than trading limits currently in effect and other similar trading limits) have been required, or trading otherwise materially limited, by either of said exchanges or by order of the Commission or any other governmental authority, nor shall a banking moratorium have been declared by either Federal or New York authorities nor shall a banking moratorium have been declared by the relevant authorities in the country or countries of origin of any foreign currency or currencies in which the Securities are denominated or payable, and (iv) there shall not have been a material disruption in commercial banking or securities settlement or clearance services in the United States, and (v) the rating assigned by any nationally recognized statistical rating organization to any debt securities of the Company as of the date of the applicable Terms Agreement or the date that the applicable purchase offer was presented to the Company, as the case may be, shall not have been downgraded from that date to the applicable Settlement Date nor shall any notice have been given by any such nationally recognized statistical rating organization of any intended or potential downgrading or any review for possible change that does not indicate the direction of the possible change in such rating and (vi) the Prospectus, at the time it was required to be delivered to a purchaser of the Securities, shall not have contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at such time, not misleading. If any condition specified in this Section 5 shall not have been fulfilled, any Terms Agreement to which you are a party and any agreement to purchase Securities from the Company pursuant to a purchase offer solicited by you as Agent may be terminated insofar as it applies to you (or, if terminated by the book-running lead manager of a syndicated issue, as it applies to all Agents party thereto) or to a prospective purchaser, in the case of a solicited purchase offer, by notice to the Company at any time at or prior to the Closing Time or applicable Settlement Date, and such termination shall be without liability of any party to any other party, except that the covenants set forth in Section 3(f) hereof, the provisions of Section 4 hereof, the indemnity and contribution agreement set forth in Sections 7 and 8 hereof, and the provisions of Sections 10 and 13 hereof shall remain in effect.
Appears in 1 contract
Conditions of Obligation. Your obligation to solicit offers to purchase the Securities act as Dealer Manager hereunder shall at all times be subject, in your capacity as agent of the Company and your obligation to purchase Securities as principal pursuant to any Terms Agreement or otherwise and the obligations of purchasers to purchase Securities pursuant to purchase offers solicited by you and accepted by the Company will be subject to the accuracy of the representations and warranties on the part of the Company hereindiscretion, to the accuracy of the statements of the Company’s officers made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by the Company of all covenants and agreements herein contained on its part to be performed and observed (in the case of an Agent’s obligation to solicit offers to purchase Securities, at the time of such solicitation, and, in the case of an Agent’s or any other purchaser’s obligation to purchase Securities, at the time the Company accepts the offer to purchase such Securities and at the applicable Settlement Date) and (in each case) to the following additional conditions precedentthat:
(a) At All representations, warranties and other statements of each Note Party herein are, at all times during the Closing Time Exchange Offer, true and at each Settlement Date with respect to any applicable Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received:
(i) The opinion or opinions (including the 10b-5 letter), dated as of such time, of Xxxxx Xxxxx LLP, counsel to the Company, correct in a form and substance satisfactory to you, to the effect set forth in Exhibit C hereto.
(ii) The opinion or opinions, dated as of such time, of the General Counsel of the Company, in a form and substance satisfactory to you, to the effect set forth in Exhibit D hereto.
(iii) The opinion or opinions of your counsel, relating to the validity of the Securities, the Indentures, this Agreement, such other matters as the Agent or Agents receiving such opinion may request and the Registration Statement, the General Disclosure Package (if applicable) and the Prospectusall material respects.
(b) At Each Note Party at all times during the Closing Time and at each Settlement Date with respect to any Terms Agreement to which you are a party, if called for by such Terms Agreement, you Exchange Offer shall have received a certificate performed all of the Chairman, Vice Chairman, President or a Vice President of the Company, dated as of the Closing Time and, if called for by such Terms Agreement, dated as of the Settlement Date for such transaction, in each case, its obligations hereunder theretofore required to the effect be performed.
(c) The Prospectus will have been either (i) that there has been no downgrading, nor any notice given of any potential filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the rules and regulations under the Securities Act or intended downgrading, or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any nationally recognized statistical rating organization since the date of the Terms Agreement (if such certificate is called for by such Terms Agreement), (ii) that included in the representations and warranties of the Company contained in Section 1 are true and correct with the same force and effect as though expressly made at and as of the date of such certificate, (iii) that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied pursuant to this Agreement at or prior to the date of such certificate and (iv) that, to the best of the Company’s knowledge, Registration Statement; no stop order suspending the effectiveness of the Registration Statement has or any part thereof will have been issued and no proceedings proceeding for that purpose will have been initiated or or, to the knowledge of the Company, threatened by the Commission; and all requests for additional information on the part of the Commission will have been complied with to your reasonable satisfaction.
(cd) At the Closing TimeXxxxxx & Xxxxxxx LLP, at the date of any Terms Agreement and counsel to Dealer Manager, shall have furnished to you, as Dealer Manager, on the applicable Settlement Date Exchange Date, the opinions of counsel with respect to any such Terms Agreement to which matters as you are a partymay reasonably request, if called for by and such Terms Agreement, you counsel shall have received from each of such documents and information as they may reasonably request to enable them to pass upon such matters.
(e) (i) Ernst Holland & Young LLP Knight, special counsel to the Company, shall have furnished to you on (or another nationally recognized firm of independent public accountantsA) the Commencement Date, the opinions to the effect set forth in Exhibit A-1 and (B) the Exchange Date, the opinions and negative assurance letter to the effect set forth in Exhibit A-2 and (ii) Xxxxx Xxxxx, Senior Vice President, General Counsel and Secretary of the Company and Guarantors, shall have furnished to you on the Exchange Date, the opinions to the effect set forth in Exhibit B.
(f) On the Commencement Date, the Withdrawal Deadline, the Expiration Date and the Exchange Date, Deloitte & Touche LLP LLP, independent public accountants, shall have furnished to you a lettercustomary accountants’ letter or letters, dated as the respective dates of the Closing Time or the date of the Terms Agreement, and a bring-down letter, dated as of such Settlement Date, as applicabledelivery thereof, in a form and substance satisfactory to you, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to certain financial information contained in or incorporated by reference into the General Disclosure Package and the Prospectus, and confirming that they are independent public accountants with respect to the Company and its subsidiaries and, if applicable, MUFG Union Bank, respectively, within the meaning of the 1933 Act and the 1933 Act Regulations. All financial statements and schedules included in materials incorporated by reference in the General Disclosure Package and the Prospectus shall be deemed included in the General Disclosure Package and the Prospectus for purposes of this subsection.
(di) At Neither the Closing Time and at each Settlement Date with respect to Company nor any Terms Agreement to which you are a party, if called for by such Terms Agreement, the counsel for the Agents of its subsidiaries shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be satisfactory in a form and substance to the Agents and their counsel. Your obligation to solicit offers to purchase the Securities in your capacity as Agent for the Company, your obligation to purchase Securities as principal pursuant to any Terms Agreement or otherwise and the obligations of purchasers to purchase Securities pursuant to purchase offers solicited by you and accepted by the Company will be subject to the following further conditions: (i) there shall not have been, sustained since the date of such Terms Agreement the latest audited financial statements included in the Offer Material any material loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Offer Material, and (ii) since the respective dates date as of which information is given in the Registration StatementOffer Material there shall not have been any change in the capital stock or the long-term debt of the Company and its subsidiaries, the General Disclosure Package and the Prospectustaken as a whole, or any Material Adverse Effect, other or any development that would reasonably be expected to have a Material Adverse Effect, otherwise than as set forth or contemplated in the General Disclosure Package and Offer Material, the Prospectuseffect of which, as amended in any such case described in clause (i) or supplemented at the time of such solicitation or at the time such offer to purchase was made, and (ii), is in Dealer Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering or the delivery of the New Securities on the terms and in the manner contemplated in this agreement and in the Offer Material.
(h) On or after the Commencement Date, there shall not have occurred any outbreak or escalation of hostilities or any material change in financial markets or other calamity or crisis (including, without limitation, an act of terrorism) the effect of which is such as to make it, in your judgment (or, in the case of a syndicated issue, in the judgment of the book-running lead manager(s)), impracticable following: (i) a suspension or inadvisable to market the Securities or enforce contracts for the sale of the Securities, and (iii) material limitation in trading in securities of the Company shall not have been suspended by the Commission or a national securities exchange, nor shall trading generally on either the Nasdaq Global Market or the New York Stock Exchange have been suspended, or minimum or maximum prices for trading of securities generally have been fixed, or maximum ranges for prices for securities The NASDAQ Global Select Market; (other than trading limits currently in effect and other similar trading limitsii) have been required, or trading otherwise materially limited, by either of said exchanges or by order of the Commission or any other governmental authority, nor shall a general moratorium on commercial banking moratorium have been activities declared by either Federal or New York State authorities nor shall a banking moratorium have been declared by the relevant authorities in the country or countries of origin of any foreign currency or currencies in which the Securities are denominated or payable, and (iv) there shall not have been a material disruption in commercial banking or securities settlement or clearance services in the United States; (iii) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war; or (iv) the occurrence of any other calamity or crisis or any change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iii) or (iv) in Dealer Manager’s judgment makes it impracticable or inadvisable to proceed with the offering or the delivery of the New Securities on the terms and in the manner contemplated in the Offer Material.
(i) As of the Exchange Date, the Dealer Manager shall have received a copy of each Security Document, executed and delivered by all of the parties thereto in form and substance satisfactory to the Dealer Manager.
(j) As of the Exchange Date, the agreement governing the new secured revolving credit facility shall be in full force and effect, shall conform to the description thereof contained in the Prospectus and shall not have been modified.
(k) As of the Exchange Date, the agreements governing the first lien term loan credit facility and the second lien term loan credit facility shall be in full force and effect, shall conform to the description thereof contained in the Prospectus and shall not have been modified.
(l) The Company shall have furnished or caused to be furnished to Dealer Manager on the Exchange Date a certificate of an authorized executive officer of the Company, stating (i) that the representations and warranties of the Company contained in this agreement (A) that are not qualified by a “materiality” qualification shall be true and correct in all material respects as though such representations and warranties had been made on and as of the Exchange Date; and (B) that are qualified by a “materiality” qualification shall be true and correct in all respects as so qualified as though such representations and warranties had been made on and as of the Exchange Date (except to the extent such representations and warranties are, by their terms, made as of a specific date, in which case such representations and warranties shall be true and correct in the manner set forth in the foregoing clauses (A) or (B), as applicable, as of such date), (ii) that the Company has duly performed, in all material respects (to the extent not already so qualified), all obligations required to be performed by it as of such date pursuant to the terms hereof, (iii) that no event specified in subsections (f) and (g) of this Section has occurred, (iv) that the Company and the Guarantors are Solvent and (v) such other matters as Dealer Manager may reasonably request; provided that, for the rating assigned by avoidance of doubt, such certifying officers may state that he/she makes no representation regarding any nationally recognized statistical rating organization to any debt securities Dealer Manager Information.
(m) On the Exchange Date, the Dealer Manager shall have received copies of the fully executed Supplemental Indenture, the New Indenture, and the Warrant Agreement.
(n) The New Securities shall be eligible for clearance and settlement through DTC.
(o) The Company as of the date of the applicable Terms Agreement or the date that the applicable purchase offer was presented to the Company, as the case may be, shall not have been downgraded from that date to the applicable Settlement Date nor shall any notice have been given by any such nationally recognized statistical rating organization of any intended or potential downgrading or any review for possible change that does not indicate the direction of the possible change in such rating and (vi) the Prospectus, at the time it was required to be delivered to a purchaser of the Securities, shall not have contained an untrue statement of a material fact or omitted to state a material fact all information necessary in order to make the statements thereinprepare all financing statements, United States Patent and Trademark Office and Copyright Office filings, fixture filings and all other documents or instruments necessary in order to perfect a security interest in the light Collateral.
(p) No stop order, restraining order or injunction shall have been issued (and not subsequently stayed or vacated) by, and no proceeding, litigation or investigation shall have been initiated by or before, any agency, court or other governmental body with respect to the making or the consummation of the circumstances existing at such timeExchange Offer, not misleading. If any condition specified in this Section 5 shall not have been fulfilled, any Terms Agreement to which you are believe makes it inadvisable for you to continue to render services as a party and Dealer Manager hereunder.
(q) You shall have received such other documents that you or your counsel reasonably request dated the Commencement Date or any agreement to purchase Securities from the Company pursuant to a purchase offer solicited by you as Agent may be terminated insofar as it applies to you (or, if terminated by the book-running lead manager of a syndicated issue, as it applies to all Agents party date subsequent thereto) or to a prospective purchaser, in the case of a solicited purchase offer, by notice to the Company at any time at or prior to the Closing Time or applicable Settlement Date, and such termination shall be without liability of any party to any other party, except that the covenants set forth in Section 3(f) hereof, the provisions of Section 4 hereof, the indemnity and contribution agreement set forth in Sections 7 and 8 hereof, and the provisions of Sections 10 and 13 hereof shall remain in effect.
Appears in 1 contract
Samples: Dealer Manager Agreement (Washington Consulting, Inc.)
Conditions of Obligation. Your obligation to solicit offers to purchase the Securities in your capacity as agent of the Company and your obligation to purchase Securities as principal pursuant to any Terms Agreement or otherwise and the obligations of purchasers to purchase Securities pursuant to purchase offers solicited by you and accepted by the Company will be subject to the accuracy of the representations and warranties on the part of the Company herein, to the accuracy of the statements of the Company’s 's officers made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by the Company of all covenants and agreements herein contained on its part to be performed and observed (in the case of an Agent’s 's obligation to solicit offers to purchase Securities, at the time of such solicitation, and, in the case of an Agent’s 's or any other purchaser’s 's obligation to purchase Securities, at the time the Company accepts the offer to purchase such Securities and at the applicable Settlement Date) and (in each case) to the following additional conditions precedent:
(a) At the Closing Time and at each Settlement Date with respect to any applicable Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received:
(i1) The opinion or opinions (including the 10b-5 letter)opinions, dated as of such time, of Xxxxx Xxxxx LLPSquire, Sanxxxx & Demxxxx, X.L.P., counsel to the Company, in a form and substance satisfactory to you, to the effect set forth that:
(i) The Company has been duly incorporated and is validly existing as a corporation in Exhibit C heretogood standing under the laws of the State of Delaware.
(ii) The Company has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement.
(iii) U.S. Bank National Association has been duly organized and is validly existing as a national banking association in good standing under the laws of the United States, and has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement.
(iv) This Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement) and any applicable Delayed Delivery Contract has been duly authorized, executed and delivered by the Company.
(v) Each of the Senior Note Indenture and the Subordinated Note Indenture has been duly and validly authorized, executed and delivered by the Company and (assuming each such Indenture has been duly authorized, executed and delivered by the Senior Note Trustee or the Subordinated Note Trustee, as applicable) constitutes a valid and binding agreement of the Company, enforceable in accordance with its terms, except as enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally or by general equitable principles (regardless of whether enforcement is considered in a proceeding in equity or at law).
(vi) The Securities have been duly and validly authorized by all necessary corporate action and, when executed and authenticated as specified in the applicable Indenture and delivered against payment of the consideration therefore in accordance with this Agreement, will constitute valid and binding obligations of the Company, enforceable in accordance with their terms, except as enforceability thereof may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting the enforcement of creditors' rights generally or by general equitable principles (regardless of whether enforcement is considered in a proceeding in equity or at law).
(vii) The statements in the Prospectus under the caption "Description of Debt Securities" and similar captions in the applicable prospectus supplement, insofar as they purport to summarize certain provisions of documents specifically referred to therein, are accurate summaries of such provisions.
(viii) The statements in the Prospectus under the caption "United States Taxation - United States Holders", "United States Taxation - Foreign Holders" and "Backup Withholding and Information Reporting" to the extent that they constitute matters of law or legal conclusions, have been reviewed by such counsel and are correct.
(ix) To the best of such counsel's knowledge and information, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Registration Statement or to be filed as exhibits thereto other than those described or referred to therein or filed or incorporated by reference as exhibits thereto and the descriptions thereof or references thereto are correct.
(x) The Indentures are qualified under the 1939 Act.
(xi) The Registration Statement is effective under the 1933 Act and, to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the 1933 Act or proceedings therefor initiated or threatened by the Commission.
(xii) At the time the Registration Statement became effective, and at the date hereof, the Registration Statement and the Prospectus and at the time they were filed, each document incorporated by reference therein (other than the financial statements, schedules and other financial and statistical data included therein and the Statements of Eligibility and Qualification of the Trustee on Form T-l filed as an exhibit thereto, as to which no opinion need be rendered) complied as to form in all material respects with the requirements of the 1933 Act, the 1934 Act, the 1939 Act and the regulations under each of those Acts; and such counsel has no reason to believe that (other than the financial statements, schedules and other financial and statistical data included therein, as to which no opinion need be rendered) the Registration Statement and the Prospectus, at the time the Registration Statement became effective, or if an amendment to the Registration Statement or to any document incorporated by reference therein has been filed by the Company with the Commission subsequent to the effectiveness of the Registration Statement, then at the time of the most recent such filing, and at the date hereof, contained or contains an untrue statement of a material fact or omitted or omits to state a material fact required to be stated therein or necessary to make the statements therein not misleading or that the Prospectus, as amended or supplemented at Closing Time or the Settlement Date, as the case may be, contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.
(xiii) No consent, approval, authorization, or order of any court or governmental authority or agency is required in connection with the sale of the Securities, except such as may be required under the 1933 Act or the rules and regulations thereunder, all of which have been obtained, or such as may be required under state securities laws. In rendering such opinion, such counsel may rely as to matters of New York law upon the opinion of counsel to the Agents being delivered pursuant to subparagraph (3).
(2) The opinion or opinions, dated as of such time, of the General Counsel of the Company, in a form and substance satisfactory to you, to the effect set forth that:
(i) There are no pending or, to the best of such counsel's knowledge, overtly threatened lawsuits or claims against the Company or any subsidiary of the Company which are required to be disclosed in Exhibit D heretothe documents incorporated by reference in the Registration Statement that are not disclosed as required.
(iiiii) The execution and delivery of this Agreement (and, if the opinion is being given pursuant to Section 6(c) hereof on account of the Company having entered into a Terms Agreement, the applicable Terms Agreement), any applicable Delayed Delivery Contract, the Securities and the Indentures and the consummation of the transactions contemplated herein and therein will not to the best of such counsel's knowledge and information, (a) conflict with or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any subsidiary pursuant to any contract, indenture, mortgage, loan agreement, note, lease or other instrument known to such counsel to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound or to which any of the property or assets of the Company or any of its subsidiaries is subject and that is material to the Company and its subsidiaries, taken as a whole, or (b) result in a violation of any law or administrative regulation or administrative or court decree of any court or governmental agency, authority or body or any arbitrator having jurisdiction over the Company known to such counsel and applicable to the Company nor will such action result in any violation of the provisions of the charter or by-laws of the Company.
(3) The opinion or opinions of your counsel, relating to the validity of the Securities, the Indentures, this Agreement, such other matters as the Agent or Agents receiving such opinion may request and the Registration Statement, the General Disclosure Package (if applicable) Statement and the Prospectus.
(b) At the Closing Time and at each Settlement Date with respect to any Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received a certificate of the Chairman, Vice Chairman, President or a Vice President of the Company, dated as of the Closing Time and, if called for by such Terms Agreement, dated as of the Settlement Date for such transaction, in each case, case to the effect (i) that there has been no downgrading, nor any notice given of any potential or intended downgrading, or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s 's securities by any nationally recognized statistical rating organization since the date of the Terms Agreement (if such certificate is called for by such Terms Agreement)organization, (ii) that the representations and warranties of the Company contained in Section 1 are true and correct with the same force and effect as though expressly made at and as of the date of such certificate, (iii) that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied pursuant to this Agreement at or prior to the date of such certificate certificate, and (iv) that, to the best of the Company’s knowledge, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission.
(c) At the Closing Time, at the date of any Terms Agreement and on the applicable Settlement Date with respect to any such Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received from each of (i) Ernst & Young LLP (or another nationally recognized firm of independent public accountants) and (ii) Deloitte & Touche LLP a letter, dated as of the Closing Time or the date of the Terms Agreement, and a bring-down letter, dated as of such Settlement Date, as applicable, in a form and substance satisfactory to you, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to certain financial information contained in or incorporated by reference into the General Disclosure Package and the Prospectus, and confirming that they are independent public accountants with respect to the Company and its subsidiaries and, if applicable, MUFG Union Bank, respectively, within the meaning of the 1933 Act and the 1933 Act Regulations. All financial statements and schedules included in materials incorporated by reference in the General Disclosure Package and the Prospectus shall be deemed included in the General Disclosure Package and the Prospectus for purposes of this subsection.
(d) At the Closing Time and at each Settlement Date with respect to any Terms Agreement to which you are a party, if called for by such Terms Agreement, the counsel for the Agents you shall have been furnished with such documents and opinions received from PricewaterhouseCoopers LLP (or another nationally recognized firm of independent public accountants), a letter, dated as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedingsClosing Time or such Settlement Date, or in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be satisfactory in a form and substance satisfactory to you, to the Agents and their counsel. Your obligation to solicit offers to purchase the Securities in your capacity as Agent for the Company, your obligation to purchase Securities as principal pursuant to any Terms Agreement or otherwise and the obligations of purchasers to purchase Securities pursuant to purchase offers solicited by you and accepted by the Company will be subject to the following further conditions: effect that:
(i) there shall not They are independent public accountants with respect to the Company and its subsidiaries within the meaning of the 1933 Act and the Regulations.
(ii) In their opinion the consolidated financial statements and schedules audited by them and included in the Prospectus comply as to form in all material respects with the applicable accounting requirements of the 1933 Act, the 1934 Act and the Regulations.
(iii) They have beenmade a review of any unaudited consolidated financial statements included in the Prospectus in accordance with standards established by the American Institute of Certified Public Accountants.
(iv) On the basis of the review referred to in (iii) and a reading of the latest available interim financial information of the Company and its consolidated subsidiaries, inspection of the minute books of the Company and such subsidiaries since the date of such Terms Agreement or since the respective dates as of which information is given balance sheet included in the Registration StatementCompany's most recent audited financial statements, the General Disclosure Package and the Prospectus, any Material Adverse Effect, other than as set forth in the General Disclosure Package and the Prospectus, as amended or supplemented at the time inquiries of such solicitation or at the time such offer to purchase was made, and (ii) there shall not have occurred any outbreak or escalation of hostilities or any material change in financial markets or other calamity or crisis (including, without limitation, an act of terrorism) the effect of which is such as to make it, in your judgment (or, in the case of a syndicated issue, in the judgment of the book-running lead manager(s)), impracticable or inadvisable to market the Securities or enforce contracts for the sale of the Securities, and (iii) trading in securities officials of the Company shall not have been suspended by the Commission or a national securities exchange, nor shall trading generally on either the Nasdaq Global Market or the New York Stock Exchange have been suspended, or minimum or maximum prices responsible for trading of securities generally have been fixed, or maximum ranges for prices for securities (other than trading limits currently in effect financial and accounting matters and other similar trading limits) have been requiredspecified procedures, or trading otherwise materially limited, by either of said exchanges or by order nothing came to their attention that caused them to believe that the unaudited financial statements included in the Prospectus do not comply as to form in all material respects with applicable accounting requirements of the Commission 1933 Act, the 1934 Act and the Regulations or any other governmental authority, nor shall a banking moratorium have been declared by either Federal or New York authorities nor shall a banking moratorium have been declared by that the relevant authorities unaudited financial statements included in the country or countries Prospectus are not presented in conformity with generally accepted accounting principles applied on a basis consistent in all material respects with that of origin of any foreign currency or currencies in which the Securities are denominated or payable, and (iv) there shall not have been a material disruption in commercial banking or securities settlement or clearance services audited financial statements included in the United States, and Prospectus.
(v) They have performed specified procedures, not constituting an audit, including a reading of the rating assigned by any nationally recognized statistical rating organization to any debt securities latest available interim financial statements of the Company as and its consolidated subsidiaries, a reading of the minute books of the Company and such subsidiaries since the date of the applicable Terms Agreement or balance sheet included in the Company's most recent audited financial statements, inquiries of officials of the Company responsible for financial and accounting matters and such other inquiries and procedures as may be specified in such letter, and on the basis of such inquiries and procedures nothing came to their attention that caused them to believe that:
(A) at the date that the applicable purchase offer was presented to the Company, as the case may be, shall not have been downgraded from that date to the applicable Settlement Date nor shall any notice have been given by any such nationally recognized statistical rating organization of any intended or potential downgrading or any review for possible change that does not indicate the direction of the possible change in latest available consolidated balance sheet read by such rating and (vi) the Prospectusaccountants, or at the time it was required to be delivered to a purchaser of the Securities, shall subsequent specified date not have contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at such time, not misleading. If any condition specified in this Section 5 shall not have been fulfilled, any Terms Agreement to which you are a party and any agreement to purchase Securities from the Company pursuant to a purchase offer solicited by you as Agent may be terminated insofar as it applies to you (or, if terminated by the book-running lead manager of a syndicated issue, as it applies to all Agents party thereto) or to a prospective purchaser, in the case of a solicited purchase offer, by notice to the Company at any time at or more than five days prior to the Closing Time or applicable Settlement Datedate of delivery of such letter, there was any change in the capital stock of the Company and such termination shall be without liability of any party to any other party, except that the covenants set forth in Section 3(f) hereof, the provisions of Section 4 hereof, the indemnity and contribution agreement set forth in Sections 7 and 8 hereof, and the provisions of Sections 10 and 13 hereof shall remain in effect.its consolidated
Appears in 1 contract
Conditions of Obligation. Your obligation to solicit offers to purchase the Securities act as Dealer Managers hereunder will at all times be subject, in your capacity as agent of the Company and your obligation to purchase Securities as principal pursuant to any Terms Agreement or otherwise and the obligations of purchasers to purchase Securities pursuant to purchase offers solicited by you and accepted by the Company will be subject to the accuracy of the representations and warranties on the part of the Company hereindiscretion, to the accuracy of the statements of the Company’s officers made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by the Company of all covenants and agreements herein contained on its part to be performed and observed (in the case of an Agent’s obligation to solicit offers to purchase Securities, at the time of such solicitation, and, in the case of an Agent’s or any other purchaser’s obligation to purchase Securities, at the time the Company accepts the offer to purchase such Securities and at the applicable Settlement Date) and (in each case) to the following additional conditions precedentthat:
(a) At All representations, warranties and other statements of each of the Closing Time Offeror and at each Settlement Date with respect to any applicable Terms Agreement to which you the Company contained herein are a party, if called for by such Terms Agreement, you shall have received:
(i) The opinion or opinions (including the 10b-5 letter), dated as of such time, the date of Xxxxx Xxxxx LLP, counsel to the Company, in a form and substance satisfactory to you, to the effect set forth in Exhibit C hereto.
(ii) The opinion or opinions, dated as of such time, of the General Counsel of the Company, in a form and substance satisfactory to you, to the effect set forth in Exhibit D hereto.
(iii) The opinion or opinions of your counsel, relating to the validity of the Securities, the Indentures, this Agreement, such other matters as and at all times during the Agent or Agents receiving such opinion may request Exchange Offers through and including the Registration Statementlatest Exchange Date will be, the General Disclosure Package (if applicable) true and the Prospectuscorrect.
(b) At the Closing Time and at each Settlement Date with respect to any Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received a certificate Each of the Chairman, Vice Chairman, President or a Vice President Offeror and the Company at all times during the Exchange Offer will have performed all of the Company, dated as of the Closing Time and, if called for by such Terms Agreement, dated as of the Settlement Date for such transaction, in each case, its obligations hereunder theretofore to the effect be performed.
(c) The Prospectus will have been either (i) that there has been no downgrading, nor any notice given of any potential filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the rules and regulations under the Act in accordance with Section 2(a) hereof or intended downgrading, or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any nationally recognized statistical rating organization since the date of the Terms Agreement (if such certificate is called for by such Terms Agreement), (ii) that included in the representations and warranties of Registration Statement; the Company contained in Section 1 are true and correct Schedule TO will have been filed with the same force and effect as though expressly made at and as of the date of such certificate, (iiiCommission in accordance with Section 2(a) that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied pursuant to this Agreement at or prior to the date of such certificate and (iv) that, to the best of the Company’s knowledge, hereof; no stop order suspending the effectiveness or use of the Registration Statement has or Schedule TO or any part thereof will have been issued and no proceedings proceeding for that purpose will have been initiated or threatened by the Commission.
(c) At the Closing Time, at the date of any Terms Agreement ; and all requests for additional information on the applicable Settlement Date with respect to any such Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received from each of (i) Ernst & Young LLP (or another nationally recognized firm of independent public accountants) and (ii) Deloitte & Touche LLP a letter, dated as part of the Closing Time or the date of the Terms Agreement, and a bring-down letter, dated as of such Settlement Date, as applicable, in a form and substance satisfactory Commission will have been complied with to you, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to certain financial information contained in or incorporated by reference into the General Disclosure Package and the Prospectus, and confirming that they are independent public accountants with respect to the Company and its subsidiaries and, if applicable, MUFG Union Bank, respectively, within the meaning of the 1933 Act and the 1933 Act Regulations. All financial statements and schedules included in materials incorporated by reference in the General Disclosure Package and the Prospectus shall be deemed included in the General Disclosure Package and the Prospectus for purposes of this subsectionyour reasonable satisfaction.
(d) At On each Commencement Date (as defined below) and each Exchange Date, Xxxxxxx Xxxxxxx & Xxxxxxxx, counsel to you, will have furnished to you, as Dealer Managers, an opinion or opinions, dated the Closing Time and at each Settlement Date respective date of delivery thereof, with respect to any Terms Agreement to which you are a party, if called for by such Terms Agreement, the counsel for the Agents shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale incorporation of the Securities as herein contemplated Offeror and related proceedings, or in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be satisfactory in a form and substance to the Agents and their counsel. Your obligation to solicit offers to purchase the Securities in your capacity as Agent for the Company, your obligation to purchase Securities as principal pursuant to any Terms Agreement or otherwise the authorized capitalization of the Offeror and the obligations Company, the validity of purchasers to purchase Securities pursuant to purchase offers solicited by you the Exchange Securities, the due authorization, execution and accepted by the Company will be subject to the following further conditions: (i) there shall not have beendelivery of this Agreement, since the date of such Terms Agreement or since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, any Material Adverse Effectthe Schedule TO and such other related matters as you may reasonably request and such counsel will have received such papers and information as they may reasonably request to enable them to pass on such matters. "Commencement Date" means, other than as set forth in the General Disclosure Package and the Prospectuswith respect to each Exchange Offer, as amended or supplemented at the time of such solicitation or at the time such offer to purchase was made, and (ii) there shall not have occurred any outbreak or escalation of hostilities or any material change in financial markets or other calamity or crisis (including, without limitation, an act of terrorism) the effect of which is such as to make it, in your judgment (or, in the case of a syndicated issue, in the judgment of the book-running lead manager(s)), impracticable or inadvisable to market the Securities or enforce contracts for the sale of the Securities, and (iii) trading in securities of the Company shall not have been suspended by the Commission or a national securities exchange, nor shall trading generally on either the Nasdaq Global Market or the New York Stock Exchange have been suspended, or minimum or maximum prices for trading of securities generally have been fixed, or maximum ranges for prices for securities (other than trading limits currently in effect and other similar trading limits) have been required, or trading otherwise materially limited, by either of said exchanges or by order of the Commission or any other governmental authority, nor shall a banking moratorium have been declared by either Federal or New York authorities nor shall a banking moratorium have been declared by the relevant authorities in the country or countries of origin of any foreign currency or currencies in which the Securities are denominated or payable, and (iv) there shall not have been a material disruption in commercial banking or securities settlement or clearance services in the United States, and (v) the rating assigned by any nationally recognized statistical rating organization to any debt securities of the Company as of the date of the applicable Terms Agreement or the date that the applicable purchase offer was presented to the Company, as the case may be, shall not have been downgraded from that date to the applicable Settlement Date nor shall any notice have been given by any on which such nationally recognized statistical rating organization of any intended or potential downgrading or any review for possible change that does not indicate the direction of the possible change in such rating and (vi) the Prospectus, at the time it was required to be delivered to a purchaser of the Securities, shall not have contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at such time, not misleading. If any condition specified in this Section 5 shall not have been fulfilled, any Terms Agreement to which you are a party and any agreement to purchase Securities from the Company pursuant to a purchase offer solicited by you as Agent may be terminated insofar as it applies to you (or, if terminated by the book-running lead manager of a syndicated issue, as it applies to all Agents party thereto) or to a prospective purchaser, in the case of a solicited purchase offer, by notice to the Company at any time at or prior to the Closing Time or applicable Settlement Date, and such termination shall be without liability of any party to any other party, except that the covenants set forth in Section 3(f) hereof, the provisions of Section 4 hereof, the indemnity and contribution agreement set forth in Sections 7 and 8 hereof, and the provisions of Sections 10 and 13 hereof shall remain in effectExchange Offer commences.
Appears in 1 contract
Samples: Dealer Managers Agreement (Usx Corp)
Conditions of Obligation. Your obligation to solicit offers to purchase the Securities act as Joint Dealer Managers hereunder will at all times be subject, in your capacity as agent of the Company and your obligation to purchase Securities as principal pursuant to any Terms Agreement or otherwise and the obligations of purchasers to purchase Securities pursuant to purchase offers solicited by you and accepted by the Company will be subject to the accuracy of the representations and warranties on the part of the Company hereindiscretion, to the accuracy of the statements of the Company’s officers made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by the Company of all covenants and agreements herein contained on its part to be performed and observed (in the case of an Agent’s obligation to solicit offers to purchase Securities, at the time of such solicitation, and, in the case of an Agent’s or any other purchaser’s obligation to purchase Securities, at the time the Company accepts the offer to purchase such Securities and at the applicable Settlement Date) and (in each case) to the following additional conditions precedentthat:
(a) At the Closing Time All representations, warranties and at each Settlement Date with respect to any applicable Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received:
(i) The opinion or opinions (including the 10b-5 letter), dated as of such time, of Xxxxx Xxxxx LLP, counsel to the Company, in a form and substance satisfactory to you, to the effect set forth in Exhibit C hereto.
(ii) The opinion or opinions, dated as of such time, of the General Counsel of the Company, in a form and substance satisfactory to you, to the effect set forth in Exhibit D hereto.
(iii) The opinion or opinions of your counsel, relating to the validity of the Securities, the Indentures, this Agreement, such other matters as the Agent or Agents receiving such opinion may request and the Registration Statement, the General Disclosure Package (if applicable) and the Prospectus.
(b) At the Closing Time and at each Settlement Date with respect to any Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received a certificate of the Chairman, Vice Chairman, President or a Vice President of the Company, dated as of the Closing Time and, if called for by such Terms Agreement, dated as of the Settlement Date for such transaction, in each case, to the effect (i) that there has been no downgrading, nor any notice given of any potential or intended downgrading, or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any nationally recognized statistical rating organization since the date of the Terms Agreement (if such certificate is called for by such Terms Agreement), (ii) that the representations and warranties covenants of the Company and the Operating Partnership contained in Section 1 herein are true and correct with the same force and effect as though expressly made at on and as of the date of such certificatethis Agreement, and at all times during the Exchange Offer and upon consummation thereof, will be true and correct in all respects.
(iiib) that Each of the Company has complied with and the Operating Partnership at all agreements times during the Exchange Offer and satisfied upon consummation thereof will have performed all conditions on of its part obligations hereunder required to be performed or satisfied performed.
(c) The Prospectus will have been either (i) filed with the Commission pursuant to this Agreement at Rule 424(b) within the applicable time period prescribed for such filing by the rules and regulations under the Act or prior to (ii) included in the date of such certificate and (iv) that, to the best of the Company’s knowledge, Registration Statement; no stop order suspending the effectiveness of the Registration Statement has or any part thereof will have been issued and no proceedings proceeding for that purpose will have been initiated or, to the knowledge of the Company or the Operating Partnership, threatened by the Commission; and all requests for additional information on the part of the Commission will have been complied with to your reasonable satisfaction.
(cd) At the Closing TimeXxxxxxxx & Xxxxxxxx LLP, at counsel to you, will have furnished to you, as Joint Dealer Managers, (i) on each of the date of any Terms Agreement commencement of the Exchange Offer (the “Commencement Date”) and on the applicable Settlement Date Date, an opinion or opinions with respect to any such Terms Agreement to which matters as you are a partymay reasonably request, if called for by such Terms Agreement, you shall have received from each of (i) Ernst & Young LLP (or another nationally recognized firm of independent public accountants) and (ii) Deloitte & Touche LLP a letter, dated as on each of the Closing Time or Commencement Date and the date of expiration of the Terms AgreementExchange Offer (the “Expiration Date”), a negative assurance letter, in each case dated the respective date of delivery thereof, and a bring-down lettersuch counsel will have received such papers and information as they may reasonably request to enable them to pass on such matters.
(e) Xxxxxx & Xxxxxxx LLP, dated counsel to the Company and the Operating Partnership, will have furnished to you, as Joint Dealer Managers, (i) on each of such the Commencement Date and the Settlement Date, as applicablean opinion or opinions substantially in the form of Annex A-1 hereto and (ii) on each of the Commencement Date and the Expiration Date, a negative assurance letter substantially in the form of Annex A-2 hereto, in each case dated the respective date of delivery thereof.
(f) On each of the Commencement Date and the Settlement Date, Vernon, Vernon, Wooten, Brown, Xxxxxxx & Xxxxxxx, P.A., special North Carolina counsel to the Company and the Operating Partnership, will have furnished to you, as Joint Dealer Managers, an opinion or opinions, dated the respective date of delivery thereof, substantially in the form of Annex B hereto.
(g) On each of the effective date of the Registration Statement, the date on which the Company files with the Commission a Form 8-K with an earnings release for the quarter ended March 31, 2009, and the Expiration Date, PricewaterhouseCoopers LLP, the independent registered public accounting firm of the Company and the Operating Partnership, will have furnished to you a letter or letters, dated the respective date of delivery thereof, in form and substance satisfactory to you, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters letters with respect to the financial statements and certain financial information contained contained, or incorporated by reference, in the Exchange Offer Material.
(h) Each of the Company and the Operating Partnership will have furnished or caused to be furnished to you, on the Expiration Date, a certificate or certificates (of an executive officer of the Company with specific knowledge of the Company’s financial affairs, in the case of the Company, and of the general partner of the Operating Partnership, in case of the Operating Partnership) to the effect that, to the best of his, her or its knowledge after reasonable investigation: that the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct at and as of such dates; that subsequent to the date of the most recent financial statements of the Company and the Operating Partnership which are incorporated by reference into the General Disclosure Package and the ProspectusExchange Offer Material, and confirming that they are independent public accountants with respect to the Company and its subsidiaries andthere has been no material adverse change, if applicablenor any development or event involving a prospective material adverse change, MUFG Union Bank, respectively, within the meaning of the 1933 Act and the 1933 Act Regulations. All financial statements and schedules included in materials incorporated by reference in the General Disclosure Package and the Prospectus shall be deemed included in the General Disclosure Package and the Prospectus for purposes condition (financial or other), business, properties or results of this subsection.
(d) At the Closing Time and at each Settlement Date with respect to any Terms Agreement to which you are a party, if called for by such Terms Agreement, the counsel for the Agents shall have been furnished with such documents and opinions as they may reasonably require for the purpose operations of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be satisfactory in a form and substance to the Agents and their counsel. Your obligation to solicit offers to purchase the Securities in your capacity as Agent for the Company, your obligation to purchase Securities the Operating Partnership and their subsidiaries taken as principal pursuant to any Terms Agreement or otherwise and the obligations of purchasers to purchase Securities pursuant to purchase offers solicited by you and accepted by the Company will be subject to the following further conditions: (i) there shall not have been, since the date of such Terms Agreement or since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, any Material Adverse Effect, other than a whole except as set forth in the General Disclosure Package Exchange Offer Material or as described in such certificate; that the Company and the ProspectusOperating Partnership have complied with all agreements and satisfied all conditions to be performed or satisfied hereunder by the Company and the Operating Partnership at or prior to such dates; that the matters set forth in subsection (c) of this Section 6 are true and correct; and to the accuracy as to such other matters as you may reasonably request.
(i) On or after the Commencement Date, as amended or supplemented at the time of such solicitation or at the time such offer to purchase was made, and (ii) there shall not have occurred (i) any outbreak or escalation of hostilities change, or any material change in financial markets development or other calamity or crisis (including, without limitation, an act of terrorism) the effect of which is such as to make it, in your judgment (orevent involving a prospective change, in the case condition (financial or other), business, properties or results of operations of the Company, the Operating Subsidiary and their subsidiaries, each taken as a syndicated issuewhole which, in the judgment of the book-running lead manager(s))Joint Dealer Managers, impracticable is material and adverse and makes it impractical or inadvisable to market proceed with making and/or consummating the Securities or enforce contracts for Exchange Offer; (ii) any downgrading in the sale rating of the Securities, and (iii) trading in any debt securities of the Company shall not have been suspended or the Operating Partnership by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Commission Act), or any public announcement that any such organization has under surveillance or review its rating of any debt securities of the Company or the Operating Partnership (other than an announcement with positive implications of a national possible upgrading, and no implication of a possible downgrading, of such rating); (iii) any change in U.S. or international financial, political or economic conditions or currency exchange rates or exchange controls as would, in the judgment of the Joint Dealer Managers, be likely to prejudice materially the success of the making and/or the consummation of the Exchange Offer; (iv) any material suspension or material limitation of trading in securities exchange, nor shall trading generally on either the Nasdaq Global Market or the New York Stock Exchange have been suspendedExchange, or any setting of minimum or maximum prices for trading on such exchange; (v) any suspension of trading of any securities generally have been fixed, or maximum ranges for prices for securities (other than trading limits currently in effect and other similar trading limits) have been required, or trading otherwise materially limited, by either of said exchanges or by order of the Commission Company or the Operating Partnership on any other governmental authority, nor shall a exchange or in the over-the-counter market; (vi) any banking moratorium have been declared by either U.S. Federal or New York authorities nor shall a banking moratorium have been declared by the relevant authorities in the country or countries authorities; (vii) any major disruption of origin settlements of any foreign currency or currencies in which the Securities are denominated or payable, and (iv) there shall not have been a material disruption in commercial banking or securities settlement or clearance services in the United States; or (viii) any attack on, and (v) outbreak or escalation of hostilities or act of terrorism involving the rating assigned United States, any declaration of war by Congress or any nationally recognized statistical rating organization to any debt securities other national or international calamity or emergency if, in the judgment of the Company as Joint Dealer Managers, the effect of any such attack, outbreak, escalation, act, declaration, calamity or emergency makes it impractical or inadvisable to proceed with making and/or consummation of the date Exchange Offer.
(j) The Company shall have issued the Shares to the tendering holders of Convertible Notes in accordance with the terms of the applicable Terms Agreement Contribution Agreement, dated April 9, 2009, between the Company and the Operating Partnership .
(k) It shall not have become unlawful under any law or regulation, federal, state or local, for the date that the applicable purchase offer was presented Joint Dealer Managers to the Companyrender services pursuant to this Agreement, or to continue so to act, as the case may be, .
(l) The Shares shall not have been downgraded from that date approved for listing on the New York Stock Exchange subject to the applicable Settlement Date nor shall any notice have been given by any such nationally recognized statistical rating organization of any intended or potential downgrading or any review for possible change that does not indicate the direction of the possible change in such rating and (vi) the Prospectus, at the time it was required to be delivered to a purchaser of the Securities, shall not have contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at such time, not misleading. If any condition specified in this Section 5 shall not have been fulfilled, any Terms Agreement to which you are a party and any agreement to purchase Securities from the Company pursuant to a purchase offer solicited by you as Agent may be terminated insofar as it applies to you (or, if terminated by the book-running lead manager of a syndicated issue, as it applies to all Agents party thereto) or to a prospective purchaser, in the case of a solicited purchase offer, by notice to the Company at any time at or prior to the Closing Time or applicable Settlement Date, and such termination shall be without liability of any party to any other party, except that the covenants set forth in Section 3(f) hereof, the provisions of Section 4 hereof, the indemnity and contribution agreement set forth in Sections 7 and 8 hereof, and the provisions of Sections 10 and 13 hereof shall remain in effectissuance.
Appears in 1 contract
Samples: Dealer Manager Agreement (Tanger Properties LTD Partnership /Nc/)
Conditions of Obligation. Your obligation to solicit offers to purchase the Securities in your capacity as agent of the Company and your obligation to purchase Securities as principal pursuant to any Terms Agreement or otherwise and the obligations of purchasers to purchase Securities pursuant to purchase offers solicited by you and accepted by the Company will be subject to the accuracy of the representations and warranties on the part of the Company herein, to the accuracy of the statements of the Company’s officers made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by the Company of all covenants and agreements herein contained on its part to be performed and observed (in the case of an Agent’s obligation to solicit offers to purchase Securities, at the time of such solicitation, and, in the case of an Agent’s or any other purchaser’s obligation to purchase Securities, at the time the Company accepts the offer to purchase such Securities and at the applicable Settlement Date) and (in each case) to the following additional conditions precedent:
(a) At the Closing Time and at each Settlement Date with respect to any applicable Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received:
(i) The opinion or opinions (including the 10b-5 letter), dated as of such time, of Xxxxx Mxxxx Xxxxx LLP, counsel to the Company, in a form and substance satisfactory to you, to the effect set forth in Exhibit C hereto.
(ii) The opinion or opinions, dated as of such time, of the General Counsel of the Company, in a form and substance satisfactory to you, to the effect set forth in Exhibit D hereto.
(iii) The opinion or opinions of your counsel, relating to the validity of the Securities, the Indentures, this Agreement, such other matters as the Agent or Agents receiving such opinion may request and the Registration Statement, the General Disclosure Package (if applicable) and the Prospectus.
(b) At the Closing Time and at each Settlement Date with respect to any Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received a certificate of the Chairman, Vice Chairman, President or a Vice President of the Company, dated as of the Closing Time and, if called for by such Terms Agreement, dated as of the Settlement Date for such transaction, in each case, to the effect (i) that there has been no downgrading, nor any notice given of any potential or intended downgrading, or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any nationally recognized statistical rating organization since the date of the Terms Agreement (if such certificate is called for by such Terms Agreement), (ii) that the representations and warranties of the Company contained in Section 1 are true and correct with the same force and effect as though expressly made at and as of the date of such certificate, (iii) that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied pursuant to this Agreement at or prior to the date of such certificate and (iv) that, to the best of the Company’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission.
(c) At the Closing Time, at the date of any Terms Agreement and on the applicable Settlement Date with respect to any such Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received from each of (i) Ernst & Young LLP (or another nationally recognized firm of independent public accountants) and (ii) Deloitte & Touche LLP ), a letter, dated as of the Closing Time or the date of the Terms Agreement, and a bring-down letter, dated as of such Settlement Date, as applicable, in a form and substance satisfactory to you, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to certain financial information contained in or incorporated by reference into the General Disclosure Package and the Prospectus, and confirming that they are independent public accountants with respect to the Company and its subsidiaries and, if applicable, MUFG Union Bank, respectively, within the meaning of the 1933 Act and the 1933 Act Regulations. All financial statements and schedules included in materials incorporated by reference in the General Disclosure Package and the Prospectus shall be deemed included in the General Disclosure Package and the Prospectus for purposes of this subsection.
(d) At the Closing Time and at each Settlement Date with respect to any Terms Agreement to which you are a party, if called for by such Terms Agreement, the counsel for the Agents shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be satisfactory in a form and substance to the Agents and their counsel. Your obligation to solicit offers to purchase the Securities in your capacity as Agent for the Company, your obligation to purchase Securities as principal pursuant to any Terms Agreement or otherwise and the obligations of purchasers to purchase Securities pursuant to purchase offers solicited by you and accepted by the Company will be subject to the following further conditions: (i) there shall not have been, since the date of such Terms Agreement or since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, any Material Adverse Effect, other than as set forth in the General Disclosure Package and the Prospectus, as amended or supplemented at the time of such solicitation or at the time such offer to purchase was made, and (ii) there shall not have occurred any outbreak or escalation of hostilities or any material change in financial markets or other calamity or crisis (including, without limitation, an act of terrorism) the effect of which is such as to make it, in your judgment (or, in the case of a syndicated issue, in the judgment of the book-running lead manager(s)), impracticable or inadvisable to market the Securities or enforce contracts for the sale of the Securities, and (iii) trading in securities of the Company shall not have been suspended by the Commission or a national securities exchange, nor shall trading generally on either the Nasdaq Global Market or the New York Stock Exchange have been suspended, or minimum or maximum prices for trading of securities generally have been fixed, or maximum ranges for prices for securities (other than trading limits currently in effect and other similar trading limits) have been required, or trading otherwise materially limited, by either of said exchanges or by order of the Commission or any other governmental authority, nor shall a banking moratorium have been declared by either Federal or New York authorities nor shall a banking moratorium have been declared by the relevant authorities in the country or countries of origin of any foreign currency or currencies in which the Securities are denominated or payable, and (iv) there shall not have been a material disruption in commercial banking or securities settlement or clearance services in the United States, and (v) the rating assigned by any nationally recognized statistical rating organization to any debt securities of the Company as of the date of the applicable Terms Agreement or the date that the applicable purchase offer was presented to the Company, as the case may be, shall not have been downgraded from that date to the applicable Settlement Date nor shall any notice have been given by any such nationally recognized statistical rating organization of any intended or potential downgrading or any review for possible change that does not indicate the direction of the possible change in such rating and (vi) the Prospectus, at the time it was required to be delivered to a purchaser of the Securities, shall not have contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at such time, not misleading. If any condition specified in this Section 5 shall not have been fulfilled, any Terms Agreement to which you are a party and any agreement to purchase Securities from the Company pursuant to a purchase offer solicited by you as Agent may be terminated insofar as it applies to you (or, if terminated by the book-running lead manager of a syndicated issue, as it applies to all Agents party thereto) or to a prospective purchaser, in the case of a solicited purchase offer, by notice to the Company at any time at or prior to the Closing Time or applicable Settlement Date, and such termination shall be without liability of any party to any other party, except that the covenants set forth in Section 3(f) hereof, the provisions of Section 4 hereof, the indemnity and contribution agreement set forth in Sections 7 and 8 hereof, and the provisions of Sections 10 and 13 hereof shall remain in effect.
Appears in 1 contract
Conditions of Obligation. Your obligation to solicit offers to purchase the Securities act as Dealer Manager hereunder will at all times be subject, in your capacity as agent of the Company and your obligation to purchase Securities as principal pursuant to any Terms Agreement or otherwise and the obligations of purchasers to purchase Securities pursuant to purchase offers solicited by you and accepted by the Company will be subject to the accuracy of the representations and warranties on the part of the Company hereindiscretion, to the accuracy of the statements of the Company’s officers made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by the Company of all covenants and agreements herein contained on its part to be performed and observed (in the case of an Agent’s obligation to solicit offers to purchase Securities, at the time of such solicitation, and, in the case of an Agent’s or any other purchaser’s obligation to purchase Securities, at the time the Company accepts the offer to purchase such Securities and at the applicable Settlement Date) and (in each case) to the following additional conditions precedentthat:
(a) At All representations and warranties of the Closing Time and at each Settlement Date with respect to any applicable Terms Agreement to which you Offeror contained herein are a party, if called for by such Terms Agreement, you shall have received:
(i) The opinion or opinions (including the 10b-5 letter), dated as of such time, the date of Xxxxx Xxxxx LLP, counsel to the Company, in a form and substance satisfactory to you, to the effect set forth in Exhibit C hereto.
(ii) The opinion or opinions, dated as of such time, of the General Counsel of the Company, in a form and substance satisfactory to you, to the effect set forth in Exhibit D hereto.
(iii) The opinion or opinions of your counsel, relating to the validity of the Securities, the Indentures, this Agreement, such other matters as and at all times during the Agent or Agents receiving such opinion may request Exchange Offer through the Closing Date, will be true and the Registration Statement, the General Disclosure Package (if applicable) and the Prospectuscorrect in all material respects.
(b) At The Offeror at all times during the Closing Time and at each Settlement Date with respect Exchange Offer will have performed all of its obligations hereunder theretofore to any Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall be performed.
(c) The Prospectus will have received a certificate of the Chairman, Vice Chairman, President or a Vice President of the Company, dated as of the Closing Time and, if called for by such Terms Agreement, dated as of the Settlement Date for such transaction, in each case, to the effect been either (i) that there has been no downgrading, nor any notice given of any potential filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the rules and regulations under the Act in accordance with Section 2(a) hereof or intended downgrading, or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any nationally recognized statistical rating organization since the date of the Terms Agreement (if such certificate is called for by such Terms Agreement), (ii) that included in the representations and warranties of the Company contained in Section 1 are true and correct with the same force and effect as though expressly made at and as of the date of such certificate, (iii) that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied pursuant to this Agreement at or prior to the date of such certificate and (iv) that, to the best of the Company’s knowledge, Registration Statement; no stop order suspending the effectiveness of the Registration Statement has or any part thereof will have been issued and no proceedings proceeding for that purpose will have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission will have been complied with to your reasonable satisfaction.
(cd) At On the Closing Time, at the date of any Terms Agreement and on the applicable Settlement Date with respect to any such Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received from each of (i) Ernst & Young LLP (or another nationally recognized firm of independent public accountants) and (ii) Deloitte & Touche LLP a letter, dated as of the Closing Time or the date of the Terms Agreement, and a bring-down letter, dated as of such Settlement Date, general counsel to the Offeror, Xxxxxxx X. Xxxxx, will have furnished to you, as applicableDealer Manager, an opinion in a form and substance satisfactory to you.
(e) On the Closing Date, containing statements Shearman & Sterling will have furnished to you, as Dealer Manager, an opinion in form and information substance satisfactory to you.
(f) The Offeror will have furnished or caused to be furnished to you, on each of the type ordinarily Commencement Date and the Closing Date, a certificate or certificates of officers of the Offeror reasonably satisfactory to you as to the accuracy of the representations and warranties of the Offeror at and as of such dates, as to the performance by the Offeror of all of its obligations hereunder to be performed at or prior to such date, as to the matters set forth in subsections (c) and (d) of this Section and as to such other matters as you may reasonably request.
(i) Neither the Offeror nor its Material Subsidiary will have sustained since the date of the latest audited financial statements included in accountants’ “comfort letters” to underwriters with respect to certain financial information contained in in, or incorporated by reference into into, the General Disclosure Package and Prospectus any loss or interference with their business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court of governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and confirming that they are independent public accountants with respect to the Company and its subsidiaries and, if applicable, MUFG Union Bank, respectively, within the meaning of the 1933 Act and the 1933 Act Regulations. All financial statements and schedules included in materials incorporated by reference in the General Disclosure Package and the Prospectus shall be deemed included in the General Disclosure Package and the Prospectus for purposes of this subsection.
(dii) At the Closing Time and at each Settlement Date with respect to any Terms Agreement to which you are a party, if called for by such Terms Agreement, the counsel for the Agents shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be satisfactory in a form and substance to the Agents and their counsel. Your obligation to solicit offers to purchase the Securities in your capacity as Agent for the Company, your obligation to purchase Securities as principal pursuant to any Terms Agreement or otherwise and the obligations of purchasers to purchase Securities pursuant to purchase offers solicited by you and accepted by the Company will be subject to the following further conditions: (i) there shall not have been, since the latest date of such Terms Agreement or since the respective dates as of which information is given in the Registration StatementProspectus there will not have been any change in the capital stock or long-term debt of the Offeror or its Material Subsidiary or any change, or any development involving a prospective change, in or affecting the General Disclosure Package general affairs, management, financial position, stockholders' equity or results of operations of the Offeror and the Prospectusits Material Subsidiary, any Material Adverse Effect, other otherwise than as set forth or contemplated in the General Disclosure Package and the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is, in the judgment of the Dealer Manager, so material and adverse as amended to make it impracticable or supplemented at inadvisable to proceed with the time Exchange Offer or the delivery of such solicitation Exchange Notes on the terms and in the manner contemplated in the Exchange Offer Material.
(h) On or at after the time such offer to purchase was madedate hereof (i) no downgrading will have occurred in the rating accorded the Offeror's debt securities by any "nationally recognized statistical rating organization", as that term is defined by the Commission for purposes of Rule 436(g)(2) under the Act, and (ii) no such organization will have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the Offeror's debt securities.
(j) On or after the Commencement Date there shall not have occurred any of the following: (i) a suspension or material limitation in trading in securities generally on the New York Stock Exchange or The NASDAQ National Market; (ii) a suspension or material limitation in trading in the Offeror's securities on The NASDAQ National Market; (iii) a general moratorium on commercial banking activities declared by either Federal, or New York or California State authorities; (iv) the outbreak or escalation of hostilities involving the United States or any material change in financial markets the declaration by the United States of a national emergency or other calamity or crisis (includingwar, without limitation, an act of terrorism) if the effect of which is any such as to make it, event specified in your judgment this clause (or, iv) in the case judgment of the Dealer Manager makes it impracticable or inadvisable to proceed with the Exchange Offer on the terms and in the manner contemplated in the Exchange Offer Material; or (v) the occurrence of a syndicated issuematerial adverse change in the existing financial, political or economic conditions in the United States or elsewhere which, in the judgment of the book-running lead manager(s)), impracticable Dealer Manager would materially and adversely affect the financial markets or inadvisable to market the Securities or enforce contracts for the sale success of the Securities, and (iii) trading in securities of the Company shall not have been suspended by the Commission or a national securities exchange, nor shall trading generally on either the Nasdaq Global Market or the New York Stock Exchange have been suspended, or minimum or maximum prices for trading of securities generally have been fixed, or maximum ranges for prices for securities (other than trading limits currently in effect and other similar trading limits) have been required, or trading otherwise materially limited, by either of said exchanges or by order of the Commission or any other governmental authority, nor shall a banking moratorium have been declared by either Federal or New York authorities nor shall a banking moratorium have been declared by the relevant authorities in the country or countries of origin of any foreign currency or currencies in which the Securities are denominated or payable, and (iv) there shall not have been a material disruption in commercial banking or securities settlement or clearance services in the United States, and (v) the rating assigned by any nationally recognized statistical rating organization to any debt securities of the Company as of the date of the applicable Terms Agreement or the date that the applicable purchase offer was presented to the Company, as the case may be, shall not have been downgraded from that date to the applicable Settlement Date nor shall any notice have been given by any such nationally recognized statistical rating organization of any intended or potential downgrading or any review for possible change that does not indicate the direction of the possible change in such rating and (vi) the Prospectus, at the time it was required to be delivered to a purchaser of the Securities, shall not have contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at such time, not misleading. If any condition specified in this Section 5 shall not have been fulfilled, any Terms Agreement to which you are a party and any agreement to purchase Securities from the Company pursuant to a purchase offer solicited by you as Agent may be terminated insofar as it applies to you (or, if terminated by the book-running lead manager of a syndicated issue, as it applies to all Agents party thereto) or to a prospective purchaser, in the case of a solicited purchase offer, by notice to the Company at any time at or prior to the Closing Time or applicable Settlement Date, and such termination shall be without liability of any party to any other party, except that the covenants set forth in Section 3(f) hereof, the provisions of Section 4 hereof, the indemnity and contribution agreement set forth in Sections 7 and 8 hereof, and the provisions of Sections 10 and 13 hereof shall remain in effectOffer.
Appears in 1 contract
Conditions of Obligation. Your obligation to solicit offers to purchase the Securities in your capacity as agent of the Company and your obligation to purchase Securities as principal pursuant to any Terms Agreement or otherwise and the obligations of purchasers to purchase Securities pursuant to purchase offers solicited by you and accepted by the Company will be subject to the accuracy of the representations and warranties on the part of the Company herein, to the accuracy of the statements of the Company’s officers made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by the Company of all covenants and agreements herein contained on its part to be performed and observed (in the case of an Agent’s obligation to solicit offers to purchase Securities, at the time of such solicitation, and, in the case of an Agent’s or any other purchaser’s obligation to purchase Securities, at the time the Company accepts the offer to purchase such Securities and at the applicable Settlement Date) and (in each case) to the following additional conditions precedent:
(a) At the Closing Time and at each Settlement Date with respect to any applicable Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received:
(i1) The opinion or opinions (including the 10b-5 letter), dated as of such time, of Xxxxx Xxxxx LLP, counsel to the Company, in a form and substance satisfactory to you, to the effect set forth in Exhibit C hereto.C.
(ii) The opinion or opinions, dated as of such time, of the General Counsel of the Company, in a form and substance satisfactory to you, to the effect set forth in Exhibit D hereto.
(iii3) The opinion or opinions of your counsel, relating to the validity of the Securities, the Indentures, this Agreement, such other matters as the Agent or Agents receiving such opinion may request and the Registration Statement, the General Disclosure Package (if applicable) and the Prospectus.
(b) At the Closing Time and at each Settlement Date with respect to any Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received a certificate of the ChairmanChief Operating Officer, Chief Financial Officer, any Senior Executive Vice ChairmanPresident, President any Executive Vice President, or a any Senior Vice President of the Company, dated as of the Closing Time and, if called for by such Terms Agreement, dated as of the Settlement Date for such transaction, in each case, to the effect (i) that there has been no downgrading, nor any notice given of any potential or intended downgrading, or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any nationally recognized statistical rating organization since the date of the such Terms Agreement (if such certificate is called for by such Terms Agreement), (ii) that the representations and warranties of the Company contained in Section 1 are true and correct with the same force and effect as though expressly made at and as of the date of such certificate, (iii) that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied pursuant to this Agreement at or prior to the date of such certificate and certificate, (iv) that, to the best of the Company’s knowledge, that no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the CommissionCommission and (v) that the Company, and, to the best of its knowledge, its officers and directors, are in compliance with applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002 and the rules and regulations promulgated in connection therewith, including Section 402 related to loans and Sections 302 and 906 related to certifications.
(c) At the Closing Time, at the date of any Terms Agreement and on the applicable Settlement Date with respect to any such Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received from each of (i) Ernst & Young PricewaterhouseCoopers LLP (or another nationally recognized firm of independent public accountants) and (ii) Deloitte & Touche LLP ), a letter, dated as of the Closing Time or the date of the such Terms Agreement, and a bring-down letter, dated as of such Settlement Date, as applicable, in a form and substance satisfactory to you, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference into the General Disclosure Package and the Prospectus, and confirming that they are independent public accountants with respect to the Company and its subsidiaries and, if applicable, MUFG Union Bank, respectively, within the meaning of the 1933 Act and the 1933 1934 Act Regulations. All financial statements and schedules included in materials incorporated by reference in the General Disclosure Package and the Prospectus shall be deemed included in respective applicable published rules and regulations of the General Disclosure Package and the Prospectus for purposes of this subsectionSEC thereunder.
(d) At the Closing Time and at each Settlement Date with respect to any Terms Agreement to which you are a party, if called for by such Terms Agreement, the counsel for the Agents shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be satisfactory in a form and substance reasonably satisfactory to the Agents and their counsel; provided that if such actions are not reasonably satisfactory to the Agents or their counsel, the Company shall have a reasonable opportunity to cure such actions. Your obligation to solicit offers to purchase the Securities in your capacity as Agent agent for the Company, your obligation to purchase Securities as principal pursuant to any Terms Agreement or otherwise and the obligations of purchasers to purchase Securities pursuant to purchase offers solicited by you and accepted by the Company will be subject to the following further conditions: (i) there shall not have been, since the date of such Terms Agreement or since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, any Material Adverse Effect, other than as set forth in the General Disclosure Package and the Prospectus, as amended or supplemented at the time of such solicitation or at the time such offer to purchase was made, and (ii) there shall not have occurred any outbreak or escalation of hostilities or any material change in financial markets or other calamity or crisis (including, without limitation, an act of terrorism) the effect of which is such as to make it, in your judgment (or, in the case of a syndicated issue, in the judgment of the book-running lead manager(s)), impracticable or inadvisable to market the Securities or enforce contracts for the sale of the Securities, and (iii) trading in securities of the Company shall not have been suspended by the Commission or a national securities exchange, nor shall trading generally on either the Nasdaq Global Market or the New York Stock Exchange have been suspended, or minimum or maximum prices for trading of securities generally have been fixed, or maximum ranges for prices for securities (other than trading limits currently in effect and other similar trading limits) have been required, or trading otherwise materially limited, by either of said exchanges or by order of the Commission or any other governmental authority, nor shall a banking moratorium have been declared by either Federal federal or New York authorities nor shall a banking moratorium have been declared by the relevant authorities in the country or countries of origin of any foreign currency or currencies in which the Securities are denominated or payable, and (iv) there shall not have been a material disruption in commercial banking or securities settlement or clearance services in the United States, and (v) the rating assigned by any nationally recognized statistical rating organization to any debt securities of the Company as of the date of the applicable Terms Agreement or the date that the applicable purchase offer was presented to the Company, as the case may be, shall not have been downgraded from that date to the applicable Settlement Date nor shall any notice have been given by any such nationally recognized statistical rating organization of any intended or potential downgrading or any review for possible change that does not indicate the direction of the possible change in such rating and (vi) the Prospectus, at the time it was required to be delivered to a purchaser of the Securities, shall not have contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at such time, not misleading. If any condition specified in this Section 5 shall not have been fulfilled, any Terms Agreement to which you are a party and any agreement to purchase Securities from the Company pursuant to a purchase offer solicited by you as Agent agent may be terminated insofar as it applies to you (or, if terminated by the book-running lead manager of a syndicated issue, as it applies to all Agents party thereto) or to a prospective purchaser, in the case of a solicited purchase offer, by notice to the Company at any time at or prior to the Closing Time or applicable Settlement Date, and such termination shall be without liability of any party to any other party, except that the covenants set forth in Section 3(f) hereof, the provisions of Section 4 hereof, the indemnity and contribution agreement set forth in Sections 7 and 8 hereof, and the provisions of Sections 10 and 13 hereof shall remain in effect.
Appears in 1 contract
Conditions of Obligation. Your obligation to solicit offers to purchase the Securities act as Dealer Manager hereunder shall at all times be subject, in your capacity as agent of the Company and your obligation to purchase Securities as principal pursuant to any Terms Agreement or otherwise and the obligations of purchasers to purchase Securities pursuant to purchase offers solicited by you and accepted by the Company will be subject to the accuracy of the representations and warranties on the part of the Company hereindiscretion, to the accuracy of the statements of the Company’s officers made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by the Company of all covenants and agreements herein contained on its part to be performed and observed (in the case of an Agent’s obligation to solicit offers to purchase Securities, at the time of such solicitation, and, in the case of an Agent’s or any other purchaser’s obligation to purchase Securities, at the time the Company accepts the offer to purchase such Securities and at the applicable Settlement Date) and (in each case) to the following additional conditions precedentthat:
(a) At All representations, warranties and other statements of the Closing Time Company contained herein are now, and at each Settlement Date with respect all times during the Exchange Offer will continue to any applicable Terms Agreement to which you are a partybe, if called for by such Terms Agreement, you true and correct.
(b) The Registration Statement shall have received:become effective on or prior to the Settlement Date.
(ic) The opinion or opinions Company at all times during the Exchange Offer shall have performed all of its obligations hereunder theretofore required to have been performed.
(including d) On each of the 10b-5 letter)Commencement Date and the Settlement Date, dated as of such time, of Xxxxx Xxxxx Cxxxxxxxx & Bxxxxxx LLP, counsel to the Company, shall have furnished to you, as Dealer Manager, their opinion, dated the Commencement Date or the Settlement Date, as the case may be, in a form and substance satisfactory to you, substantially to the effect set forth in Exhibit C Exhibits A-1 and A-2 hereto, respectively.
(iie) The opinion or opinions, dated as of such time, On each of the Commencement Date and the Settlement Date, Bxxxxxx Xxxx, Esq., Associate General Counsel and Assistant Secretary of the Company, shall have furnished to you, as Dealer Manager, his opinion, dated the Commencement Date or the Settlement Date, as the case may be, in a form and substance satisfactory to you, substantially to the effect set forth in Exhibit D Exhibits B-1 and B-2 hereto, respectively.
(iiif) The opinion You shall have received, on each of the Commencement Date and the Settlement Date, a letter dated the Commencement Date or opinions the Settlement Date, as the case may be, in form and substance satisfactory to you, of your counsel, relating PricewaterhouseCoopers LLP confirming that they are an independent registered public accounting firm with respect to the validity Company and its subsidiaries within the meaning of the Securities, Securities Act and the Indentures, this Agreement, rules and regulations promulgated thereunder and the PCAOB and stating that in their opinion the financial statements and schedules examined by them and included or incorporated by reference in the Registration Statement and the Prospectus comply in form in all material respects with the applicable accounting requirements of the Securities Act and the rules and regulations promulgated thereunder; and containing such other matters statements and information as is ordinarily included in accountants’ “comfort letters” with respect to the Agent or Agents receiving such opinion may request financial statements and certain financial and statistical information contained in the Registration Statement, the General Disclosure Package (if applicable) Statement and the Prospectus.
(bg) At the Closing Time and at each Settlement Date with respect to any Terms Agreement to which you are a party, if called for by such Terms Agreement, you You shall have received on the Settlement Date, a certificate or certificates of an executive officer of the Chairman, Vice Chairman, President or a Vice President Company with specific knowledge of the Company’s financial affairs to the effect that, dated as of the Closing Time and, if called for by such Terms Agreement, dated as of the Settlement Date for such transaction, in each case, to the effect he represents as follows:
(i) that there The Registration Statement has been no downgrading, nor any notice given of any potential or intended downgrading, or of a possible change that does not indicate become effective under the direction of the possible change, in the rating accorded any of the Company’s securities by any nationally recognized statistical rating organization since the date of the Terms Agreement (if such certificate is called for by such Terms Agreement), (ii) that the representations Securities Act and warranties of the Company contained in Section 1 are true and correct with the same force and effect as though expressly made at and as of the date of such certificate, (iii) that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied pursuant to this Agreement at or prior to the date of such certificate and (iv) that, to the best of the Company’s knowledge, no stop order suspending the effectiveness of the Registration Statement or no order preventing or suspending the use of the Prospectus has been issued issued, and no proceedings for that such purpose or pursuant to Section 8A of the Securities Act have been initiated taken or are, to his or her knowledge, contemplated or threatened by the Commission.;
(c) At the Closing Time, at the date of any Terms Agreement and on the applicable Settlement Date with respect to any such Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received from each of (i) Ernst & Young LLP (or another nationally recognized firm of independent public accountants) and (ii) Deloitte & Touche LLP a letter, dated The representations and warranties of the Company contained in Section 4 hereof are true and correct as of the Closing Time Settlement Date;
(iii) There has not been any downgrading in the rating accorded the Company’s debt securities by Mxxxx’x Investors Service, Inc. (“Moody’s”) or the date of the Terms AgreementStandard & Poor’s Ratings Group (“S&P”), and a bring-down letterneither Moody’s nor S&P has publicly announced that it has under surveillance or review, dated as of such Settlement Datewith possible negative implications, as applicable, in a form and substance satisfactory to you, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to certain financial information contained in or incorporated by reference into the General Disclosure Package and the Prospectus, and confirming that they are independent public accountants with respect to the Company and its subsidiaries and, if applicable, MUFG Union Bank, respectively, within the meaning of the 1933 Act and the 1933 Act Regulations. All financial statements and schedules included in materials incorporated by reference in the General Disclosure Package and the Prospectus shall be deemed included in the General Disclosure Package and the Prospectus for purposes of this subsection.
(d) At the Closing Time and at each Settlement Date with respect to any Terms Agreement to which you are a party, if called for by such Terms Agreement, the counsel for the Agents shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy and completeness rating of any of the representations and warranties, or the fulfillment of any of the conditions, herein containedCompany’s debt securities; and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be satisfactory in a form and substance to the Agents and their counsel. Your obligation to solicit offers to purchase the Securities in your capacity as Agent for the Company, your obligation to purchase Securities as principal pursuant to any Terms Agreement or otherwise and the obligations of purchasers to purchase Securities pursuant to purchase offers solicited by you and accepted by the Company will be subject to the following further conditions: and
(iiv) there shall not have been, since Since the date of such Terms Agreement or since the respective dates as of which information is given in the Registration Statement, there has not been any change in the General Disclosure Package capital stock (other than issuances pursuant to equity incentive plans) or increase in long-term debt of the Company or any of the subsidiaries that is material to the Company and its subsidiaries taken as a whole, or any material adverse change, or any development that would reasonably be expected to result in a material adverse change, in or affecting the business, properties, financial position or results of operations of the Company and its subsidiaries, taken as a whole, except as set forth or contemplated in the Registration Statement and the Prospectus, any Material Adverse Effect, other than as set forth in .
(h) On each of the General Disclosure Package Commencement Date and the ProspectusSettlement Date, as amended or supplemented at the time of such solicitation or at Dealer Manager shall have received from Cravath, Swaine & Mxxxx LLP, counsel for the time such offer to purchase was made, and (ii) there shall not have occurred any outbreak or escalation of hostilities or any material change in financial markets or other calamity or crisis (including, without limitationDealer Manager, an act of terrorism) opinion or opinions dated the effect of which is such as to make it, in your judgment (or, in the case of a syndicated issue, in the judgment of the book-running lead manager(s)), impracticable or inadvisable to market the Securities or enforce contracts for the sale of the Securities, and (iii) trading in securities of the Company shall not have been suspended by the Commission or a national securities exchange, nor shall trading generally on either the Nasdaq Global Market Commencement Date or the New York Stock Exchange have been suspended, or minimum or maximum prices for trading of securities generally have been fixed, or maximum ranges for prices for securities (other than trading limits currently in effect and other similar trading limits) have been required, or trading otherwise materially limited, by either of said exchanges or by order of the Commission or any other governmental authority, nor shall a banking moratorium have been declared by either Federal or New York authorities nor shall a banking moratorium have been declared by the relevant authorities in the country or countries of origin of any foreign currency or currencies in which the Securities are denominated or payable, and (iv) there shall not have been a material disruption in commercial banking or securities settlement or clearance services in the United States, and (v) the rating assigned by any nationally recognized statistical rating organization to any debt securities of the Company as of the date of the applicable Terms Agreement or the date that the applicable purchase offer was presented to the CompanySettlement Date, as the case may be, with respect to such matters as the Dealer Manager may reasonably request.
(i) The Company shall not have furnished to you such further certificates and documents confirming the representations and warranties, covenants and conditions contained herein and related matters as you may reasonably have requested.
(j) The Common Stock shall have been downgraded from that date duly listed, subject to notice of issuance, on the applicable Settlement Date nor shall any notice have been given by any such nationally recognized statistical rating organization of any intended or potential downgrading or any review for possible change that does not indicate the direction of the possible change in such rating and (vi) the Prospectus, at the time it was required to be delivered to a purchaser of the Securities, shall not have contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at such time, not misleading. If any condition specified in this Section 5 shall not have been fulfilled, any Terms Agreement to which you are a party and any agreement to purchase Securities from the Company pursuant to a purchase offer solicited by you as Agent may be terminated insofar as it applies to you (or, if terminated by the book-running lead manager of a syndicated issue, as it applies to all Agents party thereto) or to a prospective purchaser, in the case of a solicited purchase offer, by notice to the Company at any time at or prior to the Closing Time or applicable Settlement Date, and such termination shall be without liability of any party to any other party, except that the covenants set forth in Section 3(f) hereof, the provisions of Section 4 hereof, the indemnity and contribution agreement set forth in Sections 7 and 8 hereof, and the provisions of Sections 10 and 13 hereof shall remain in effectNew York Stock Exchange.
Appears in 1 contract
Samples: Dealer Manager Agreement (Goodyear Tire & Rubber Co /Oh/)
Conditions of Obligation. Your obligation obligations to solicit offers to purchase the Securities act as Dealer Managers hereunder will at all times be subject, in your capacity as agent of the Company and your obligation to purchase Securities as principal pursuant to any Terms Agreement or otherwise and the obligations of purchasers to purchase Securities pursuant to purchase offers solicited by you and accepted by the Company will be subject to the accuracy of the representations and warranties on the part of the Company hereindiscretion, to the accuracy of the statements of the Company’s officers made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by the Company of all covenants and agreements herein contained on its part to be performed and observed (in the case of an Agent’s obligation to solicit offers to purchase Securities, at the time of such solicitation, and, in the case of an Agent’s or any other purchaser’s obligation to purchase Securities, at the time the Company accepts the offer to purchase such Securities and at the applicable Settlement Date) and (in each case) to the following additional conditions precedentthat:
(a) At All representations, warranties and other statements of the Closing Time and at each Settlement Date with respect to any applicable Terms Agreement to which you are a partyOfferor contained herein are, if called for by such Terms Agreement, you shall have received:
(i) The opinion or opinions (including the 10b-5 letter), dated as of such time, the date of Xxxxx Xxxxx LLP, counsel to the Company, in a form and substance satisfactory to you, to the effect set forth in Exhibit C hereto.
(ii) The opinion or opinions, dated as of such time, of the General Counsel of the Company, in a form and substance satisfactory to you, to the effect set forth in Exhibit D hereto.
(iii) The opinion or opinions of your counsel, relating to the validity of the Securities, the Indentures, this Agreement, such other matters as and, at all times prior to the Agent or Agents receiving such opinion may request expiration of the Exchange Offer and the Registration StatementConsent Solicitation, the General Disclosure Package (if applicable) will be true and the Prospectuscorrect in all material respects.
(b) At The Offeror at all times during the Closing Time and at each Settlement Date with respect Transactions will have performed all of its obligations hereunder theretofore to any Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall be performed.
(c) The Prospectus will have received a certificate of the Chairman, Vice Chairman, President or a Vice President of the Company, dated as of the Closing Time and, if called for by such Terms Agreement, dated as of the Settlement Date for such transaction, in each case, to the effect been either (i) that there has been no downgrading, nor any notice given of any potential filed with the Commission pursuant to Rule 424(b) within the applicable time period prescribed for such filing by the rules and regulations under the Act in accordance with Section 2(a) hereof or intended downgrading, or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any nationally recognized statistical rating organization since the date of the Terms Agreement (if such certificate is called for by such Terms Agreement), (ii) that included in the representations and warranties of the Company contained in Section 1 are true and correct with the same force and effect as though expressly made at and as of the date of such certificate, (iii) that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied pursuant to this Agreement at or prior to the date of such certificate and (iv) that, to the best of the Company’s knowledge, Registration Statement; no stop order suspending the effectiveness of the Registration Statement has or any part thereof will have been issued and no proceedings proceeding for that purpose will have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission will have been complied with to the Lead Dealer Manager’s reasonable satisfaction.
(cd) At On or prior to the Closing TimeExchange Date, at the Proxy Solicitation shall have terminated and the shareholders of the Offeror shall have approved the increase in the Offeror’s authorized capital stock as contemplated by the Proxy Statement.
(e) On the date on which the Offeror accepts for payment or exchange Outstanding Notes tendered pursuant to the Exchange Offer or consents delivered pursuant to the Consent Solicitation (“Exchange Date”), Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, counsel to Xxxxxxxxx & Company, Inc., will have furnished to Xxxxxxxxx & Company, Inc., an opinion or opinions, reasonably acceptable to Xxxxxxxxx & Company, Inc.
(f) On the Exchange Date, Xxxxxx and Xxxxx LLP, counsel to the Offeror, will have furnished to each Dealer Manager, an opinion or opinions dated the respective date of any Terms Agreement and on delivery thereof substantially in the applicable Settlement Date with respect to any such Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received from form of Annex A hereto.
(g) On each of the days on which the Exchange Offer and Consent Solicitation commences (ithe “Commencement Date”) Ernst & Young LLP (or another nationally recognized firm of and the Exchange Date and Xxxxx Xxxxxxxx LLP, independent public accountants) and (ii) Deloitte & Touche LLP , each will have furnished to each Dealer Manager a letterletter or letters, dated as of the Closing Time or the respective date of the Terms Agreement, and a bring-down letter, dated as of such Settlement Date, as applicabledelivery thereof, in a form and substance satisfactory to youit, containing statements and information to the effect set forth in Annex B hereto.
(h) The Offeror will have furnished or caused to be furnished to the Dealer Managers, on each of the type ordinarily Commencement Date and the Exchange Date, a certificate or certificates of officers of the Offeror satisfactory to it as to the accuracy of the representations and warranties of the Offeror at and as of such dates, as to the performance by the Offeror of all of its obligations hereunder to be performed at or prior to such date, as to the matters set forth in subsections (c) and (h) of this Section and as to such other matters as the Lead Dealer Manager may reasonably request.
(A) Neither the Offeror nor any of its subsidiaries will have sustained since the date of the latest audited financial statements included in accountants’ “comfort letters” to underwriters with respect to certain financial information contained in in, or incorporated by reference into into, the General Disclosure Package and Prospectus any loss or interference with their business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court of governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and confirming that they are independent public accountants with respect to the Company and its subsidiaries and, if applicable, MUFG Union Bank, respectively, within the meaning of the 1933 Act and the 1933 Act Regulations. All financial statements and schedules included in materials incorporated by reference in the General Disclosure Package and the Prospectus shall be deemed included in the General Disclosure Package and the Prospectus for purposes of this subsection.
(dB) At the Closing Time and at each Settlement Date with respect to any Terms Agreement to which you are a party, if called for by such Terms Agreement, the counsel for the Agents shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be satisfactory in a form and substance to the Agents and their counsel. Your obligation to solicit offers to purchase the Securities in your capacity as Agent for the Company, your obligation to purchase Securities as principal pursuant to any Terms Agreement or otherwise and the obligations of purchasers to purchase Securities pursuant to purchase offers solicited by you and accepted by the Company will be subject to the following further conditions: (i) there shall not have been, since the latest date of such Terms Agreement or since the respective dates as of which information is given in the Registration StatementProspectus there will not have been any change in the capital stock or long-term debt of the Offeror or any of its subsidiaries or any change, or any development involving a prospective change, in or affecting the General Disclosure Package general affairs, management, financial position, shareholders’ equity or results of operations of the Offeror and the Prospectusits subsidiaries, any Material Adverse Effect, other otherwise than as set forth or contemplated in the General Disclosure Package and the Prospectus, the effect of which, in any such case described in clause (A) or (B), is, in the judgment of the Dealer Manager, so material and adverse as amended to make it impracticable or supplemented at inadvisable to proceed with the time Exchange Offer or the delivery of such solicitation the New Notes on the terms and in the manner contemplated in the Transaction Material.
(j) On or at after either the time such offer to purchase was made, and (ii) Commencement Date or the Exchange Date there shall not have occurred any outbreak of the following: (i) a suspension or escalation of hostilities material limitation in trading in securities generally on NASDAQ; (ii) a suspension or any material change limitation in financial markets or other calamity or crisis (including, without limitation, an act of terrorism) the effect of which is such as to make it, in your judgment (or, trading in the case of a syndicated issue, in the judgment of the book-running lead manager(s)), impracticable or inadvisable to market the Securities or enforce contracts for the sale of the Securities, and Offeror’s securities on NASDAQ; (iii) trading in securities of the Company shall not have been suspended by the Commission or a national securities exchange, nor shall trading generally general moratorium on either the Nasdaq Global Market or the New York Stock Exchange have been suspended, or minimum or maximum prices for trading of securities generally have been fixed, or maximum ranges for prices for securities (other than trading limits currently in effect and other similar trading limits) have been required, or trading otherwise materially limited, by either of said exchanges or by order of the Commission or any other governmental authority, nor shall a commercial banking moratorium have been activities declared by either Federal or New York or Texas State authorities nor shall a banking moratorium have been declared by the relevant authorities in the country or countries of origin of any foreign currency or currencies in which the Securities are denominated or payable, and (iv) there shall not have been a material disruption in commercial banking or securities settlement or clearance services in the United States, and ; (iv) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war or (v) the rating assigned by occurrence of any nationally recognized statistical rating organization to other calamity or crisis or any debt securities change in financial, political or economic conditions in the United States or elsewhere, if the effect of any such event specified in clause (iv) or (v) in the judgment of the Company as Lead Dealer Manager makes it impracticable or inadvisable to proceed with the Transactions on the terms and in the manner contemplated in the Transaction Materials.
(k) On the Exchange Date, each Dealer Manager shall have received copies of the date opinions of counsel and other documents that are delivered to the Trustee in connection with the Supplemental Indenture.
(l) On or promptly after the Exchange Date, each of the applicable Terms Agreement or the date that the applicable purchase offer was presented to the Company, as the case may be, Supplemental Indenture shall not have been downgraded from that date to the applicable Settlement Date nor shall any notice have been given by any such nationally recognized statistical rating organization of any intended or potential downgrading or any review for possible change that does not indicate the direction of the possible change in such rating and (vi) the Prospectus, at the time it was required to be delivered to a purchaser of the Securities, shall not have contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at such time, not misleading. If any condition specified in this Section 5 shall not have been fulfilled, any Terms Agreement to which you are a party and any agreement to purchase Securities from the Company pursuant to a purchase offer solicited by you as Agent may be terminated insofar as it applies to you (or, if terminated executed by the book-running lead manager of a syndicated issue, as it applies to all Agents party thereto) or to a prospective purchaser, in the case of a solicited purchase offer, by notice to the Company at any time at or prior to the Closing Time or applicable Settlement Date, and such termination shall be without liability of any party to any other party, except that the covenants set forth in Section 3(f) hereof, the provisions of Section 4 hereof, the indemnity and contribution agreement set forth in Sections 7 and 8 hereof, Offeror and the provisions of Sections 10 Trustee and 13 hereof shall remain in effectwill be effective.
Appears in 1 contract
