Conditions of the Agents’ Obligations. The obligations of the Agents to solicit offers to purchase Notes from the Company are subject to the accuracy of the representations and warranties of the Company in this Agreement on the date of this Agreement, when any amendment to the Registration Statement becomes effective (including the filing with the Commission of any document incorporated by reference in the Registration Statement), when any amendment or supplement to the Prospectus is filed with the Commission pursuant to the applicable paragraph of Rule 424(b) of the Rules and on each Closing Date, to performance by the Company of its obligations under this Agreement and to each of the following additional conditions: (a) If filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); and no order suspending the effectiveness of the Registration Statement, as amended from time to time, may be in effect and no proceedings for such purpose may be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) must be complied with to the reasonable satisfaction of the Agents. (b) Since the date of the most recent financial statements included or incorporated by reference in the Prospectus, (i) there must not have been any material adverse change or decrease (of the type indicated in paragraphs (ii)(B) or (ii)(C) of Annex D to this Agreement) specified in the most recent letter of the type referred to in Section 5(k) or in paragraph (f) of this Section 6, (ii) there must not have been any material adverse change in the general affairs, prospects, management, business, properties, financial condition or results of operations of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by the Prospectus, as amended or supplemented at the time of acceptance by the Company of any offer to purchase the Notes, (iii) the Company and its subsidiaries taken as a whole must not have sustained any material loss or interference with their business or properties from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree not described in the Prospectus, as then amended or supplemented at the time of acceptance by the Company of any offer to purchase the Notes, and (iv) there must not have been any downgrading in the rating of any of the Company's long-term debt securities by Standard & Poor's ("S&P") or Xxxxx'x Investors Service ("Moody's"), if, in the judgment of the Agents, any such development referred to in clause (i), (ii), (iii) or (iv) makes it impracticable or inadvisable to proceed with the soliciting of offers to purchase Notes from the Company as contemplated by the Prospectus, as then amended or supplemented. (c) The Company shall have furnished to the Agents on the date of this Agreement a certificate of the Company, signed by the Chairman of the Board, the President, or any Senior or Administrative Vice President or any Vice President and the principal financial or accounting officer of the Company, dated such date, certifying that the signers have carefully examined the Registration Statement, the Prospectus, the Indenture and this Agreement, and, to the best of their knowledge, after reasonable investigation, (i) the representations and warranties of the Company in this Agreement are accurate on and as of the date of such certificate and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied as a condition to the obligation of the Agents to solicit offers to purchase the Notes, (ii) there has not been any material adverse change in the general affairs, prospects, management, business, properties, financial condition or results of operations of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus, as amended or supplemented as of the date of such certificate, and (iii) no actions to suspend the effectiveness of the Registration Statement, as amended as of the date of such certificate, or to prohibit the sale of the Notes have been taken or threatened by the Commission. (d) The Agents shall have received on the date of this Agreement from Xxxxxx X. Xxxxxxx, Esq., Senior Vice President, General Counsel and Secretary of the Company, and Cravath, Swaine & Xxxxx, special counsel to the Company, opinions or letters dated such date substantially in the forms set forth in Annex C-1, Annex C-2-A and Annex C-2-B to this Agreement. (e) The Agents shall have received on the date of this Agreement from Xxxxx Xxxx & Xxxxxxxx, their counsel, an opinion dated such date with respect to the Company, the Notes, the Indenture, the Registration Statement, the Prospectus, this Agreement and the form and sufficiency of all proceedings taken in connection with the sale and delivery of the Notes. Such opinion and proceedings shall be satisfactory in all respects to the Agents. The Company must have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to render such opinion. (f) The Agents shall have received, at the date of this Agreement, a signed letter from Ernst & Young LLP substantially in the form of Annex D to this Agreement. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement will comply with this Agreement only if they are in form and scope reasonably satisfactory to the Agents and their counsel. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Agents and their counsel, this Agreement and all obligations of the Agents hereunder may be canceled at any time by the Agents. Notice of such cancellation shall be given to the Company in writing or by telephone or telegraph confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the offices of Xxxxx Xxxx & Xxxxxxxx, counsel for the Agents, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, on the date of this Agreement.
Appears in 1 contract
Samples: Distribution Agreement (Ashland Inc)
Conditions of the Agents’ Obligations. The obligations of the Agents to solicit offers to purchase Notes from the Company are subject to the accuracy of the representations and warranties of the Company in this Agreement on the date of this Agreement, when any amendment to the Registration Statement becomes effective (including the filing with the Commission of effective, when any document incorporated by reference in the Registration Statement)Statement is filed with the Commission, when any amendment or supplement to the Prospectus is filed with the Commission pursuant to the applicable paragraph of Rule 424(b) of the Rules Rules, the date of each solicitation of an offer to purchase Notes from the Company and on each Closing Date, to performance by the Company of its obligations under this Agreement and to each of the following additional conditions:
(a) If filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); and no order suspending the effectiveness of the Registration Statement, as amended from time to time, may be in effect and no proceedings for such purpose may be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) must be complied with to the reasonable satisfaction of the Agents.
(b) Since the date of the most recent financial statements included or incorporated by reference in the Prospectus, (i) there must not have been any material adverse change or decrease (of the type indicated in paragraphs (ii)(B) or (ii)(C) of Annex D to this Agreement) specified in the most recent letter of the type referred to in Section 5(k) or in paragraph (f) of this Section 6, (ii) there must not have been any material adverse change in the general affairs, prospects, management, business, properties, financial condition or results of operations of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by the Prospectus, as amended or supplemented at the time of acceptance by the Company of any offer to purchase the Notes, (iii) the Company and its subsidiaries taken as a whole must not have sustained any material loss or interference with their business or properties from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree not described in the Prospectus, as then amended or supplemented at the time of acceptance by the Company of any offer to purchase the Notes, and (iv) there must not have been any downgrading in the rating of any of the Company's long-term debt securities by Standard & Poor's ("S&P") or Xxxxx'x Investors Service ("Moody's") or any public announcement that either S & P or Moody's has under surveillance or review its rating of the Company's long-term debt securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating), if, in the judgment of the Agents, any such development referred to in clause (i), (ii), (iii) or (iv) makes it impracticable or inadvisable to proceed with the soliciting of offers to purchase Notes from the Company as contemplated by the Prospectus, as then amended or supplemented.
(c) The Company shall have furnished to the Agents on the date of this Agreement a certificate of the Company, signed by the Chairman of the Board, the President, or any Senior or Administrative Vice President or any Vice President and the principal financial or accounting officer of the Company, dated such date, certifying that the signers have carefully examined the Registration Statement, the Prospectus, the Indenture and this Agreement, and, to the best of their knowledge, after reasonable investigation, (i) the representations and warranties of the Company in this Agreement are accurate on and as of the date of such certificate and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied as a condition to the obligation of the Agents to solicit offers to purchase the Notes, (ii) there has not been any material adverse change in the general affairs, prospects, management, business, properties, financial condition or results of operations of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus, as amended or supplemented as of the date of such certificate, and (iii) no actions to suspend the effectiveness of the Registration Statement, as amended as of the date of such certificate, or to prohibit the sale of the Notes have been taken or threatened by the Commission.
(d) The Agents shall have received on the date of this Agreement from Xxxxxx X. Xxxxxxx, Esq., Senior Vice President, the General Counsel and Secretary of the Company, Company and Cravath, Swaine & Xxxxx, special counsel to the Company, opinions or letters dated such date substantially in the forms set forth in Annex C-1, Annex C-2-A and Annex C-2-B to this Agreement.
(e) The Agents shall have received on the date of this Agreement from Xxxxx Xxxx & Xxxxxxxx, their counsel, an opinion dated such date with respect to the Company, the Notes, the Indenture, the Registration Statement, the Prospectus, this Agreement and the form and sufficiency of all proceedings taken in connection with the sale and delivery of the Notes. Such opinion and proceedings shall be satisfactory in all respects to the Agents. The Company must have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to render such opinion.
(f) The Agents shall have received, at the date of this Agreement, a signed letter from Ernst & Young LLP substantially in the form of Annex D to this Agreement. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement will comply with this Agreement only if they are in form and scope reasonably satisfactory to the Agents and their counsel. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Agents and their counsel, this Agreement and all obligations of the Agents hereunder may be canceled at any time by the Agents. Notice of such cancellation shall be given to the Company in writing or by telephone or telegraph confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the offices of Xxxxx Xxxx & Xxxxxxxx, counsel for the Agents, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, on the date of this Agreement.
Appears in 1 contract
Samples: Distribution Agreement (Ashland Inc)
Conditions of the Agents’ Obligations. The obligations of the Agents to solicit offers to purchase Notes from the Company are subject to the accuracy of the representations and warranties of the Company in this Agreement on the date of this Agreement, when any amendment to the Registration Statement becomes effective (including the filing with the Commission of effective, when any document incorporated by reference in the Registration Statement)Statement is filed with the Commission, when any amendment or supplement to the Prospectus is filed with the Commission pursuant to the applicable paragraph of Rule 424(b) of the Rules Rules, the date of each solicitation of an offer to purchase Notes from the Company and on each Closing Date, to performance by the Company of its obligations under this Agreement and to each of the following additional conditions:
(a) If filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); and no order suspending the effectiveness of the Registration Statement, as amended from time to time, may be in effect and no proceedings for such purpose may be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) must be complied with to the reasonable satisfaction of the Agents.
(b) Since the date of the most recent financial statements included or incorporated by reference in the Prospectus, (i) there must not have been any material adverse change or decrease (of the type indicated in paragraphs (ii)(B) or (ii)(C) of Annex D to this Agreement) specified in the most recent letter of the type referred to in Section 5(k) or in paragraph (f) of this Section 6, (ii) there must 11 not have been any material adverse change in the general affairs, prospects, management, business, properties, financial condition or results of operations of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by the Prospectus, as amended or supplemented at the time of acceptance by the Company of any offer to purchase the Notes, (iii) the Company and its subsidiaries taken as a whole must not have sustained any material loss or interference with their business or properties from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree not described in the Prospectus, as then amended or supplemented at the time of acceptance by the Company of any offer to purchase the Notes, and (iv) there must not have been any downgrading in the rating of any of the Company's long-term debt securities by Standard & Poor's ("S&P") or Xxxxx'x Investors Service ("Moody's") or any public announcement that either S & P or Moody's has under surveillance or review its rating of the Company's long-term debt securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating), if, in the judgment of the Agents, any such development referred to in clause (i), (ii), (iii) or (iv) makes it impracticable or inadvisable to proceed with the soliciting of offers to purchase Notes from the Company as contemplated by the Prospectus, as then amended or supplemented.
(c) The Company shall have furnished to the Agents on the date of this Agreement a certificate of the Company, signed by the Chairman of the Board, the President, or any Senior or Administrative Vice President or any Vice President and the principal financial or accounting officer of the Company, dated such date, certifying that the signers have carefully examined the Registration Statement, the Prospectus, the Indenture and this Agreement, and, to the best of their knowledge, after reasonable investigation, (i) the representations and warranties of the Company in this Agreement are accurate on and as of the date of such certificate and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied as a condition to the obligation of the Agents to solicit offers to purchase the Notes, (ii) there has not been any material adverse change in the general affairs, prospects, management, business, properties, financial condition or results of operations of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus, as amended or supplemented as of the date of such certificate, and (iii) no actions to suspend the effectiveness of the Registration Statement, as amended as of the date of such certificate, or to prohibit the sale of the Notes have been taken or threatened by the Commission.
(d) The Agents shall have received on the date of this Agreement from Xxxxxx X. Xxxxxxx, Esq., Senior Vice President, the General Counsel and Secretary of the Company, Company and Cravath, Swaine & Xxxxx, special counsel to the Company, opinions or letters dated such date substantially in the forms set forth in Annex C-1, Annex C-2-A and Annex C-2-B to this Agreement.
(e) The Agents shall have received on the date of this Agreement from Xxxxx Xxxx & Xxxxxxxx, their counsel, an opinion dated such date with respect to the Company, the Notes, the Indenture, the Registration Statement, the Prospectus, this Agreement and the form and sufficiency of all proceedings taken in connection with the sale and delivery of the Notes. Such opinion and proceedings shall be satisfactory in all respects to the Agents. The Company must have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to render such opinion.
(f) The Agents shall have received, at the date of this Agreement, a signed letter from Ernst & Young LLP substantially in the form of Annex D to this Agreement. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement will comply with this Agreement only if they are in form and scope reasonably satisfactory to the Agents and their counsel. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Agents and their counsel, this Agreement and all obligations of the Agents hereunder may be canceled at any time by the Agents. Notice of such cancellation shall be given to the Company in writing or by telephone or telegraph confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the offices of Xxxxx Xxxx & Xxxxxxxx, counsel for the Agents, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, on the date of this Agreement.
Appears in 1 contract
Samples: Distribution Agreement (Ashland Inc)
Conditions of the Agents’ Obligations. The obligations obligation of the Agents Agents, as the agents of the Company, under this Agreement to solicit offers to purchase the Notes, the obligation of any person who has agreed to purchase Notes from to make payment for and take delivery of Notes, and the Company are obligation of any Agent to purchase Notes pursuant to any Purchase Agreement, is subject to the accuracy accuracy, on each Representation Date, of the representations and warranties of the Company contained in this Agreement on Agreement, to the date accuracy of the statements of the Company's officers made in any certificate furnished pursuant to the provisions of this Agreement, when any amendment to the Registration Statement becomes effective (including the filing with the Commission of any document incorporated by reference in the Registration Statement), when any amendment or supplement to the Prospectus is filed with the Commission pursuant to the applicable paragraph of Rule 424(b) of the Rules and on each Closing Date, to performance by the Company of its obligations under this Agreement and to each of the following additional terms and conditions:
(a) If filing of The Prospectus as amended or supplemented (including the Prospectus, or any supplement thereto, is required Pricing Supplement) with respect to the Notes shall have been filed with the Commission pursuant to Rule 424(b), ) under the Prospectus, and any such supplement, shall have been filed in the manner and Securities Act within the applicable time period required prescribed for such filing by Rule 424(bthe Rules and Regulations and in accordance with Sections 3(a) and 3(k); and no stop order suspending the effectiveness of the Registration Statement, as amended from time Statement or any part thereof nor any order directed to time, may be any document incorporated by reference in effect any Prospectus shall have been issued and no proceedings proceeding for such that purpose may be pending before shall have been initiated or threatened by the Commission, ; and any requests for additional information on the part request of the Commission (to be included for inclusion of additional information in the Registration Statement or the any Prospectus or otherwise) must be otherwise shall have been complied with to the reasonable satisfaction of the Agents. No order suspending the sale of the Notes in any jurisdiction designated by the Agents pursuant to Section 3(h) hereof shall have been issued, and no proceeding for that purpose shall have been initiated or threatened.
(b) Since Winston & Xxxxxx, counsel to the date Agents, shall have furnished to such Agent such opinion or opinions, dated the Closing Date, with respect to the incorporation of the most recent financial statements included Company, the validity of the Indenture, the Notes, the Registration Statement, the Prospectus and other related matters as such Agent may reasonably request; and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters.
(c) The General Counsel of the Company or other counsel for the Company satisfactory to the Agents shall have furnished to such Agent their written opinions, dated the Closing Date, in form and substance satisfactory to such Agent, to the effect that:
(i) The Company has the authorized equity capitalization as set forth in the Prospectus;
(ii) The Company has been duly incorporated by reference and is validly existing as a corporation in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and conduct its business as described in the Prospectus;
(iii) To such counsel's knowledge and other than as set forth or contemplated in the Prospectus, (i) there must are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or to which any property of the Company or any of its subsidiaries is subject, other than proceedings which would not reasonably be expected, individually or in the aggregate, to have been any a material adverse change or decrease (of effect on the type indicated in paragraphs (ii)(B) or (ii)(C) of Annex D to this Agreement) specified in the most recent letter of the type referred to in Section 5(k) or in paragraph (f) of this Section 6consolidated financial position, (ii) there must not have been any material adverse change in the general affairs, prospects, management, business, properties, financial condition stockholders' equity or results of operations of the Company and its subsidiaries taken as a whole; and, whether to such counsel's knowledge, no such proceedings are threatened or not arising from transactions contemplated by governmental authorities or threatened by others;
(iv) This Agreement and any applicable Purchase Agreement have been duly authorized, executed and delivered by the Company;
(v) The Notes have been duly authorized by the Company and, when the terms of the Notes and of their issuance and sale have been duly established in accordance with the Indenture (including any supplemental indenture thereto), this Agreement and the applicable Purchase Agreement, if any, and when each of the Notes has been duly executed, authenticated, issued and delivered in the ordinary manner provided in the Indenture (including any supplemental indenture thereto) and paid for in accordance with this Agreement and the applicable Purchase Agreement, if any, such Note will be duly and validly issued and will constitute a valid and legally binding obligation of the Company entitled to the benefits of the Indenture (including any supplemental indenture thereto) and enforceable against the Company in accordance with its terms, except to the extent enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally or by general equitable principles (whether considered in a proceeding in equity or at law); and the Indenture (including any supplemental indenture thereto) and the Notes conform in all material respects to the descriptions thereof in the Prospectus;
(vi) The Indenture (including any supplemental indenture thereto) has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the Trustee, the Indenture constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except to the extent enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally or by general equitable principles (whether considered in a proceeding in equity or at law); and the Indenture has been duly qualified under the Trust Indenture Act;
(vii) The issue and sale of the Notes, the compliance by the Company with all of the provisions of the Notes, the Indenture (including any supplemental indenture thereto), this Agreement and any applicable Purchase Agreement and the consummation of the transactions herein and therein contemplated will not result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions result in any violation of the provisions of the Certificate of Incorporation, as amended, or By-laws of the Company or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its properties;
(viii) No consent, approval, authorization, order, registration or qualification of or with any court or any governmental agency or body is required for the solicitation of offers to purchase the Notes, the issue and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, any applicable Purchase Agreement, or the Indenture (including any supplemental indenture thereto), except such as have been obtained under the Securities Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the solicitation by the Agents of offers to purchase the Notes from the Company and with purchases of the Notes by an Agent as principal, as the case may be, in each case in the manner contemplated hereby;
(ix) As of the Effective Time, the Registration Statement (including all documents incorporated by reference therein) complied, and on the date of this Agreement, the Prospectus (including all documents incorporated by reference therein) complies, and any further amendments or supplements thereto made by the Company on or prior to the date of such opinion comply (other than, in each case, the financial statements and related schedules and other financial data included or incorporated by reference therein and the Form T-1 under the Trust Indenture Act, as to which such counsel need express no opinion), as to form in all material respects with the requirements of the Securities Act, the Exchange Act and the applicable rules and regulations under said acts;
(x) To such counsel's knowledge, there are no contracts or other documents which are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Rules and Regulations which have not been so filed; and
(xi) The Registration Statement was declared effective under the Securities Act on August 1, 2001; any required filing of the Prospectus pursuant to Rule 424(b) of the Rules and Regulations has been made within the applicable time period prescribed for such filing by the Rules and Regulations; and, to such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued, and to such counsel's knowledge, no proceeding for that purpose is pending or threatened by the Commission. In addition, such counsel shall state that in the course of businessthe preparation of the Registration Statement and the Prospectus, such counsel has considered the information set forth therein in light of the matters required to be set forth therein and that such counsel has participated in conferences with officers and representatives of the Company, including its independent public accountants and representatives of and counsel for the Agents, during the course of which the contents of the Registration Statement and Prospectus and related matters were discussed and, although such counsel shall not have independently checked the accuracy or completeness of, or otherwise verified, and accordingly are not passing upon, and shall not assume responsibility for, the accuracy, completeness or fairness of the statements contained in or incorporated by reference in the Registration Statement and Prospectus (except as set forth in the last clause of subparagraph (v) above), and that such counsel has, to the extent such counsel may properly do so in the discharge of its professional responsibilities as experienced securities law practitioners, relied upon the judgment and statements of officers and representatives of the Company with respect to facts necessary to the determination of materiality. As a result of such consideration and participation, nothing has come to the attention of such counsel which causes such counsel to believe that the Registration Statement, as of the Effective Time or, if later, as of the date of the Company's most recent filing of an Annual Report on Form 10-K, contained an untrue statement of a material fact or contemplated by omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as amended of the date of such opinion, includes an untrue statement of a material fact or supplemented at omits to state a material fact necessary in order to make the time statements therein, in the light of acceptance the circumstances under which they were made, not misleading (except that, in each case, such counsel need not express any belief as to the financial statements and related schedules and other financial data included or incorporated by reference in the Company Registration Statement or the Prospectus or the Form T-1 under the Trust Indenture Act). In rendering such opinion, such counsel may state that their opinion is limited to the federal laws of any offer the United States, the laws of the State of New York and the General Corporation Law of the State of Delaware and rely as to purchase matters of fact upon the Notes, (iii) representations contained in this Agreement and the certificates of officers of the Company and of public officials.
(d) The Company shall have furnished to the Agents on the Closing Date a letter of Xxxxx & Young LLP, addressed jointly to the Company and the Agents and dated the Closing Date, of the type described in the American Institute of Certified Public Accountants' Statement on Auditing Standards No. 72, and covering such additional financial statement items and procedures (including a review of interim financial statements specified in the American Institute of Certified Public Accountants' Statement on Auditing Standards No. 71) as the Agents may reasonably request and in form and substance satisfactory to the Agents.
(e) The Company shall have furnished to the Agents a certificate, dated the Closing Date, of its Chief Financial Officer or Treasurer and its General Counsel or other counsel stating that the representations and warranties of the Company in Section 1 of this Agreement are true and correct as of such date; the Company has performed all of its agreements contained in this Agreement which are required to be performed on or before the date of such certificate and the conditions set forth in subsection 5(f) of this Agreement have been fulfilled; and no stop order suspending the effectiveness of the Registration Statement or any part thereof nor any order directed to any document incorporated by reference in any Prospectus shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission.
(i) Neither the Company nor any of its subsidiaries taken as a whole must not shall have sustained sustained, since the date of the latest audited financial statements included or incorporated by reference in the Prospectus, any material loss or interference with their its business or properties from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree not described decree, otherwise than as set forth or contemplated in the Prospectus, as then amended or supplemented at the time of acceptance by the Company of any offer to purchase the Notes, Prospectus and (ivii) since such date there must shall not have been any downgrading change in the rating capital stock (other than issuances of any common stock pursuant to benefit plans or stock options, repurchases by the Company or conversion of the Company's outstanding convertible securities) or long-term debt securities by Standard & Poor's ("S&P"except changes as a result of maturities, sinking fund payments, amortization of debt discount or currency fluctuations) of the Company or any of its subsidiaries (otherwise than as set forth or contemplated in the Prospectus or in a supplement thereto) or Xxxxx'x Investors Service ("Moody's"), if, any change in the judgment of the Agents, any such development referred to in clause (i), (ii), (iii) or (iv) makes it impracticable or inadvisable to proceed with the soliciting of offers to purchase Notes from the Company as contemplated by the Prospectus, as then amended or supplemented.
(c) The Company shall have furnished to the Agents on the date of this Agreement a certificate of the Company, signed by the Chairman of the Board, the Presidentaffecting, or any Senior or Administrative Vice President or any Vice President and the principal financial or accounting officer of the Company, dated such date, certifying that the signers have carefully examined the Registration Statementadverse development which affects, the Prospectus, the Indenture and this Agreement, and, to the best of their knowledge, after reasonable investigation, (i) the representations and warranties of the Company in this Agreement are accurate on and as of the date of such certificate and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied as a condition to the obligation of the Agents to solicit offers to purchase the Notes, (ii) there has not been any material adverse change in the general affairs, prospects, management, business, properties, financial condition position, stockholders' equity or results of operations of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except otherwise than as set forth in or contemplated in the Prospectus, as amended the effect of which, in any such case described in clause (i) or supplemented as (ii), is, in the judgment of the date Agents, so material and adverse as to make it impracticable or inadvisable to proceed with the solicitation of such certificateoffers to purchase Notes or offers and sales of Notes, and (iii) no actions or with the purchase of Notes as principal pursuant to suspend the effectiveness of the Registration Statementan applicable Purchase Agreement, as amended as of the date of such certificate, or to prohibit the sale of the Notes have been taken or threatened by the Commissioncase may be.
(dg) The Agents shall have received on the date of this Agreement from Xxxxxx X. Xxxxxxx, Esq., Senior Vice President, General Counsel and Secretary of the Company, and Cravath, Swaine & Xxxxx, special counsel Subsequent to the Company, opinions or letters dated such date substantially in the forms set forth in Annex C-1, Annex C-2-A and Annex C-2-B to this Agreement.
(e) The Agents shall have received on the date of this Agreement from Xxxxx Xxxx & Xxxxxxxx, their counsel, an opinion dated such date with respect to the Company, the Notes, the Indenture, the Registration Statement, the Prospectus, this Agreement and the form and sufficiency of all proceedings taken in connection with the sale execution and delivery of the Notes. Such opinion and proceedings shall be satisfactory in all respects to the Agents. The Company must have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to render such opinion.
(f) The Agents shall have received, at the date of this Agreement, a signed letter from Ernst & Young LLP substantially in the form of Annex D to this Agreement. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement will comply with this Agreement only if they are in form and scope reasonably satisfactory to the Agents and their counsel. If there shall not have occurred any of the conditions following: (i) a suspension or material limitation in trading in securities of the Company or securities generally on the New York Stock Exchange, Inc.; (ii) a general moratorium on commercial banking activities in New York declared by either Federal or New York State authorities; (iii) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war, if the effect of any such event specified in this Section 6 subsection (g) in the judgment of such Agent makes it impracticable or inadvisable to proceed with the solicitation of offers to purchase Notes or offers and sales of Notes or the purchase of Notes from the Company as principal pursuant to the applicable Purchase Agreement or otherwise, as the case may be, on the terms and in the manner contemplated in the Prospectus.
(h) Subsequent to the execution and delivery of this Agreement, there shall not have been fulfilled when and as provided occurred (i) any downgrading in this Agreementthe rating accorded the Company's debt securities by Xxxxx'x Investor Service, Inc. or if Standard & Poor's Rating Services or (ii) any such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Agents and their counsel, this Agreement and all obligations of the Agents hereunder may be canceled at any time by the Agents. Notice of such cancellation shall be given to the Company in writing or by telephone or telegraph confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the offices of Xxxxx Xxxx & Xxxxxxxx, counsel for the Agents, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, on the date of this AgreementCompany's debt securities.
Appears in 1 contract
Samples: Distribution Agreement (Maytag Corp)
Conditions of the Agents’ Obligations. The obligations of the Agents to solicit offers to purchase Notes from the Company are subject to the accuracy of the representations and warranties of the Company in this Agreement on the date of this Agreement, when any amendment to the Registration Statement becomes effective (including the filing with the Commission of any document incorporated by reference in the Registration Statement), when any amendment or supplement to the Prospectus is filed with the Commission pursuant to the applicable paragraph of Rule 424(b) of the Rules and on each Closing Date, to performance by the Company of its obligations under this Agreement and to each of the following additional conditions:
(a) If filing of the Prospectus, or any supplement thereto, is required pursuant to Rule 424(b), the Prospectus, and any such supplement, shall have been filed in the manner and within the time period required by Rule 424(b); and no order suspending the effectiveness of the Registration Statement, as amended from time to time, may be in effect and no proceedings for such purpose may be pending before or threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) must be complied with to the reasonable satisfaction of the Agents.
(b) Since the date of the most recent financial statements included or incorporated by reference in the Prospectus, (i) there must not have been any material adverse change or decrease (of the type indicated in paragraphs (ii)(B) or (ii)(C) of Annex D to this Agreement) specified in the most recent letter of the type referred to in Section 5(k) or in paragraph (f) of this Section 6, (ii) there must not have been any material adverse change in the general affairs, prospects, management, business, properties, financial condition or results of operations of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated by the Prospectus, as amended or supplemented at the time of acceptance by the Company of any offer to purchase the Notes, (iii) the Company and its subsidiaries taken as a whole must not have sustained any material loss or interference with their business or properties from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree not described in the Prospectus, as then amended or supplemented at the time of acceptance by the Company of any offer to purchase the Notes, and (iv) there must not have been any downgrading in the rating of any of the Company's long-term debt securities by Standard & Poor's ("S&P") or Xxxxx'x Investors Service ("Moody's") or any public announcement that either S & P or Moody's has under surveillance or review its rating of the Company's long-term debt securities (other than an announcement with positive implications of a possible upgrading, and no implication of a possible downgrading of such rating), if, in the judgment of the Agents, any such development referred to in clause (i), (ii), (iii) or (iv) makes it impracticable or inadvisable to proceed with the soliciting of offers to purchase Notes from the Company as contemplated by the Prospectus, as then amended or supplemented.
(c) The Company shall have furnished to the Agents on the date of this Agreement a certificate of the Company, signed by the Chairman of the Board, the President, or any Senior or Administrative Vice President or any Vice President and the principal financial or accounting officer of the Company, dated such date, certifying that the signers have carefully examined the Registration Statement, the Prospectus, the Indenture and this Agreement, and, to the best of their knowledge, after reasonable investigation, (i) the representations and warranties of the Company in this Agreement are accurate on and as of the date of such certificate and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied as a condition to the obligation of the Agents to solicit offers to purchase the Notes, (ii) there has not been any material adverse change in the general affairs, prospects, management, business, properties, financial condition or results of operations of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus, as amended or supplemented as of the date of such certificate, and (iii) no actions to suspend the effectiveness of the Registration Statement, as amended as of the date of such certificate, or to prohibit the sale of the Notes have been taken or threatened by the Commission.
(d) The Agents shall have received on the date of this Agreement from Xxxxxx X. Xxxxxxx, Esq., Senior Vice President, General Counsel and Secretary of the Company, and Cravath, Swaine & Xxxxx, special counsel to the Company, opinions or letters dated such date substantially in the forms set forth in Annex C-1, Annex C-2-A and Annex C-2-B to this Agreement.
(e) The Agents shall have received on the date of this Agreement from Xxxxx Xxxx & Xxxxxxxx, their counsel, an opinion dated such date with respect to the Company, the Notes, the Indenture, the Registration Statement, the Prospectus, this Agreement and the form and sufficiency of all proceedings taken in connection with the sale and delivery of the Notes. Such opinion and proceedings shall be satisfactory in all respects to the Agents. The Company must have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to render such opinion.
(f) The Agents shall have received, at the date of this Agreement, a signed letter from Ernst & Young LLP substantially in the form of Annex D to this Agreement. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement will comply with this Agreement only if they are in form and scope reasonably satisfactory to the Agents and their counsel. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Agents and their counsel, this Agreement and all obligations of the Agents hereunder may be canceled at any time by the Agents. Notice of such cancellation shall be given to the Company in writing or by telephone or telegraph confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the offices of Xxxxx Xxxx & Xxxxxxxx, counsel for the Agents, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, on the date of this Agreement.
Appears in 1 contract
Samples: Distribution Agreement (Ashland Inc)
Conditions of the Agents’ Obligations. The obligations obligation of the Agents Agents, as the agents of the Company, under this Agreement to solicit offers to purchase the Notes, the obligation of any person who has agreed to purchase Notes from to make payment for and take delivery of Notes, and the Company are obligation of any Agent to purchase Notes pursuant to any Purchase Agreement, is subject to the accuracy accuracy, on each Representation Date, of the representations and warranties of the Company contained in this Agreement on Agreement, to the date accuracy of the statements of the Company's officers made in any certificate furnished pursuant to the provisions of this Agreement, when any amendment to the Registration Statement becomes effective (including the filing with the Commission of any document incorporated by reference in the Registration Statement), when any amendment or supplement to the Prospectus is filed with the Commission pursuant to the applicable paragraph of Rule 424(b) of the Rules and on each Closing Date, to performance by the Company of its obligations under this Agreement and to each of the following additional terms and conditions:
(a) If filing of The Prospectus as amended or supplemented (including the Prospectus, or any supplement thereto, is required Pricing Supplement) with respect to the Notes shall have been filed with the Commission pursuant to Rule 424(b), ) under the Prospectus, and any such supplement, shall have been filed in the manner and Securities Act within the applicable time period required prescribed for such filing by Rule 424(bthe Rules and Regulations and in accordance with Section 3(a) and 3(k); and no stop order suspending the effectiveness of the Registration Statement, as amended from time Statement or any part thereof nor any order directed to time, may be any document incorporated by reference in effect any Prospectus shall have been issued and no proceedings proceeding for such that purpose may be pending before shall have been initiated or threatened by the Commission, ; and any requests for additional information on the part request of the Commission (to be included for inclusion of additional information in the Registration Statement or the any Prospectus or otherwise) must be otherwise shall have been complied with to the reasonable satisfaction of the Agents. No order suspending the sale of the Notes in any jurisdiction designated by the Agents pursuant to Section 3(h) hereof shall have been issued, and no proceeding for that purpose shall have been initiated or threatened.
(b) Since counsel to the date Agents, shall have furnished to such Agent such opinion or opinions, dated the Closing Date, with respect to the incorporation of the most recent financial statements included Company, the validity of the Indenture, the Notes, the Registration Statement, the Prospectus and other related matters as such Agent may reasonably request; and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters;
(c) The General Counsel of the Company or other counsel for the Company satisfactory to the Agents shall have furnished to such Agent their written opinions, dated the Closing Date, in form and substance satisfactory to such Agent, to the effect that:
(i) The Company has the authorized equity capitalization as set forth in the Prospectus;
(ii) The Company has been duly incorporated by reference and is validly existing as a corporation in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and conduct its business as described in the Prospectus;
(iii) To such counsel's knowledge and other than as set forth or contemplated in the Prospectus, (i) there must are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or to which any property of the Company or any of its subsidiaries is subject, other than proceedings which would not reasonably be expected, individually or in the aggregate, to have been any a material adverse change or decrease (of effect on the type indicated in paragraphs (ii)(B) or (ii)(C) of Annex D to this Agreement) specified in the most recent letter of the type referred to in Section 5(k) or in paragraph (f) of this Section 6consolidated financial position, (ii) there must not have been any material adverse change in the general affairs, prospects, management, business, properties, financial condition stockholders' equity or results of operations of the Company and its subsidiaries taken as a whole; and, whether to such counsel's knowledge, no such proceedings are threatened or not arising from transactions contemplated by governmental authorities or threatened by others;
(iv) This Agreement and any applicable Purchase Agreement have been duly authorized, executed and delivered by the Company;
(v) The Notes have been duly authorized by the Company and, when the terms of the Notes and of their issuance and sale have been duly established in accordance with the Indenture (including any supplemental indenture thereto), this Agreement and the applicable Purchase Agreement, if any, and when each of the Notes has been duly executed, authenticated, issued and delivered in the ordinary manner provided in the Indenture (including any supplemental indenture thereto) and paid for in accordance with this Agreement and the applicable Purchase Agreement, if any, such Note will be duly and validly issued and will constitute a valid and legally binding obligation of the Company entitled to the benefits of the Indenture (including any supplemental indenture thereto) and enforceable against the Company in accordance with its terms, except to the extent enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally or by general equitable principles (whether considered in a proceeding in equity or at law); and the Indenture (including any supplemental indenture thereto) and the Notes conform in all material respects to the descriptions thereof in the Prospectus;
(vi) The Indenture (including any supplemental indenture thereto) has been duly authorized, executed and delivered by the Company and, assuming due authorization, execution and delivery by the Trustee, the Indenture constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms, except to the extent enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally or by general equitable principles (whether considered in a proceeding in equity or at law); and the Indenture has been duly qualified under the Trust Indenture Act;
(vii) The issue and sale of the Notes, the compliance by the Company with all of the provisions of the Notes, the Indenture (including any supplemental indenture thereto), this Agreement and any applicable Purchase Agreement and the consummation of the transactions herein and therein contemplated will not result in a breach or violation of any of the terms or provisions of, or constitute a default under, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument known to such counsel to which the Company is a party or by which the Company is bound or to which any of the property or assets of the Company is subject, nor will such actions result in any violation of the provisions of the Certificate of Incorporation, as amended, or By-laws of the Company or any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its properties;
(viii) No consent, approval, authorization, order, registration or qualification of or with any court or any governmental agency or body is required for the solicitation of offers to purchase the Notes, the issue and sale of the Notes or the consummation by the Company of the transactions contemplated by this Agreement, any applicable Purchase Agreement, or the Indenture (including any supplemental indenture thereto), except such as have been obtained under the Securities Act and the Trust Indenture Act and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the solicitation by the Agents of offers to purchase the Notes from the Company and with purchases of the Notes by an Agent as principal, as the case may be, in each case in the manner contemplated hereby;
(ix) As of the Effective Time, the Registration Statement (including all documents incorporated by reference therein) complied, and on the date of this Agreement, the Prospectus (including all documents incorporated by reference therein) complies, and any further amendments or supplements thereto made by the Company on or prior to the date of such opinion comply (other than, in each case, the financial statements and related schedules and other financial data included or incorporated by reference therein and the Form T-1 under the Trust Indenture Act, as to which such counsel need express no opinion), as to form in all material respects with the requirements of the Securities Act, the Trust Indenture Act, the Exchange Act and the applicable rules and regulations under said Acts;
(x) To such counsel's knowledge, there are no contracts or other documents which are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Rules and Regulations which have not been so filed; and
(xi) The Registration Statement was declared effective under the Securities Act on April 30, 1999; any required filing of the Prospectus pursuant to Rule 424(b) of the Rules and Regulations has been made within the applicable time period prescribed for such filing by the Rules and Regulations; and, to our knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued, to our knowledge, no proceeding for that purpose is pending or threatened by the Commission. In addition, such counsel shall state that in the course of businessthe preparation of the Registration Statement and the Prospectus, such counsel has considered the information set forth therein in light of the matters required to be set forth therein and that such counsel has participated in conferences with officers and representatives of the Company, including its independent public accountants and representatives of and counsel for the Agents, during the course of which the contents of the Registration Statement and Prospectus and related matters were discussed and, although such counsel shall not have independently checked the accuracy or completeness of, or otherwise verified, and accordingly are not passing upon, and shall not assume responsibility for, the accuracy, completeness or fairness of the statements contained in or incorporated by reference in the Registration Statement and Prospectus (except as set forth in the last clause of subparagraph (v) above), and that such counsel has, to the extent such counsel may properly do so in the discharge of its professional responsibilities as experienced securities law practitioners, relied upon the judgment and statements of officers and representatives of the Company with respect to facts necessary to the determination of materiality. As a result of such consideration and participation, nothing has come to the attention of such counsel which causes such counsel to believe that the Registration Statement, as of the Effective Time or, if later, as of the date of the Company's most recent filing of an Annual Report on Form 10-K, contained an untrue statement of a material fact or contemplated by omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as amended of the date of such opinion, includes an untrue statement of a material fact or supplemented at omits to state a material fact necessary in order to make the time statements therein, in the light of acceptance the circumstances under which they were made, not misleading (except that, in each case, such counsel need not express any belief as to the financial statements and related schedules and other financial data included or incorporated by reference in the Company Registration Statement or the Prospectus or the Form T-1 under the Trust Indenture Act). In rendering such opinion, such counsel may state that their opinion is limited to the federal laws of any offer the United States, the laws of the State of New York and the General Corporation Law of the State of Delaware and rely as to purchase matters of fact upon the Notes, (iii) representations contained in this Agreement and the certificates of officers of the Company and of public officials.
(d) The Company shall have furnished to the Agents on the Closing Date a letter of Xxxxx & Young LLP, addressed jointly to the Company and the Agents and dated the Closing Date, of the type described in the American Institute of Certified Public Accountants' Statement on Auditing Standards No. 72, and covering such additional financial statement items and procedures (including a review of interim financial statements specified in the American Institute of Certified Public Accountants' Statement on Auditing Standards No. 71) as the Agents may reasonably request and in form and substance satisfactory to the Agents.
(e) The Company shall have furnished to the Agents a certificate, dated the Closing Date, of its Chief Financial Officer or Treasurer and its General Counsel or other counsel stating that the representations and warranties of the Company in Section 1 of this Agreement are true and correct as of such date; the Company has performed all of its agreements contained in this Agreement which are required to be performed on or before the date of such certificate and the condition set forth in subsection 5(f) of this Agreement have been fulfilled; and no stop order suspending the effectiveness of the Registration Statement or any part thereof nor any order directed to any document incorporated by reference in any Prospectus shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission;
(i) Neither the Company nor any of its subsidiaries taken as a whole must not shall have sustained sustained, since the date of the latest audited financial statements included or incorporated by reference in the Prospectus, any material loss or interference with their its business or properties from fire, explosion, earthquake, flood or other calamity, whether or not covered by insurance, or from any labor dispute or any court or legislative or other governmental action, order or decree not described decree, otherwise than as set forth or contemplated in the Prospectus, as then amended or supplemented at the time of acceptance by the Company of any offer to purchase the Notes, Prospectus and (ivii) since such date there must shall not have been any downgrading change in the rating capital stock (other than issuances of any common stock pursuant to benefit plans or stock options, repurchases by the Company or conversion of the Company's outstanding convertible securities) or long-term debt securities by Standard & Poor's ("S&P"except changes as a result of maturities, sinking fund payments, amortization of debt discount or currency fluctuations) of the Company or any of its subsidiaries (otherwise than as set forth or contemplated in the Prospectus or in a supplement thereto) or Xxxxx'x Investors Service ("Moody's"), if, any change in the judgment of the Agents, any such development referred to in clause (i), (ii), (iii) or (iv) makes it impracticable or inadvisable to proceed with the soliciting of offers to purchase Notes from the Company as contemplated by the Prospectus, as then amended or supplemented.
(c) The Company shall have furnished to the Agents on the date of this Agreement a certificate of the Company, signed by the Chairman of the Board, the Presidentaffecting, or any Senior or Administrative Vice President or any Vice President and the principal financial or accounting officer of the Company, dated such date, certifying that the signers have carefully examined the Registration Statementadverse development which affects, the Prospectus, the Indenture and this Agreement, and, to the best of their knowledge, after reasonable investigation, (i) the representations and warranties of the Company in this Agreement are accurate on and as of the date of such certificate and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied as a condition to the obligation of the Agents to solicit offers to purchase the Notes, (ii) there has not been any material adverse change in the general affairs, prospects, management, business, properties, financial condition position, stockholders' equity or results of operations of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except otherwise than as set forth in or contemplated in the Prospectus, as amended the effect of which, in any such case described in clause (i) or supplemented as (ii), is, in the judgment of the date Agents, so material and adverse as to make it impracticable or inadvisable to proceed with the solicitation of such certificateoffers to purchase Notes or offers and sales of Notes, and (iii) no actions or with the purchase of Notes as principal pursuant to suspend the effectiveness of the Registration Statementan applicable Purchase Agreement, as amended as of the date of such certificate, or to prohibit the sale of the Notes have been taken or threatened by the Commission.case may be;
(dg) The Agents shall have received on the date of this Agreement from Xxxxxx X. Xxxxxxx, Esq., Senior Vice President, General Counsel and Secretary of the Company, and Cravath, Swaine & Xxxxx, special counsel Subsequent to the Company, opinions or letters dated such date substantially in the forms set forth in Annex C-1, Annex C-2-A and Annex C-2-B to this Agreement.
(e) The Agents shall have received on the date of this Agreement from Xxxxx Xxxx & Xxxxxxxx, their counsel, an opinion dated such date with respect to the Company, the Notes, the Indenture, the Registration Statement, the Prospectus, this Agreement and the form and sufficiency of all proceedings taken in connection with the sale execution and delivery of the Notes. Such opinion and proceedings shall be satisfactory in all respects to the Agents. The Company must have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to render such opinion.
(f) The Agents shall have received, at the date of this Agreement, a signed letter from Ernst & Young LLP substantially in the form of Annex D to this Agreement. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement will comply with this Agreement only if they are in form and scope reasonably satisfactory to the Agents and their counsel. If there shall not have occurred any of the conditions following: (i) a suspension or material limitation in trading in securities of the Company or securities generally on the New York Stock Exchange, Inc.; (ii) a general moratorium on commercial banking activities in New York declared by either Federal or New York State authorities; (iii) the outbreak or escalation of hostilities involving the United States or the declaration by the United States of a national emergency or war, if the effect of any such event specified in this Section 6 subsection (g) in the judgment of such Agent makes it impracticable or inadvisable to proceed with the solicitation of offers to purchase Notes or offers and sales of Notes or the purchase of Notes from the Company as principal, pursuant to the applicable Purchase Agreement or otherwise, as the case may be, on the terms and in the manner contemplated in the Prospectus; and
(h) Subsequent to the execution and delivery of this Agreement, there shall not have been fulfilled when occurred (i) any downgrading in the rating accorded the Company's debt securities by Xxxxx'x Investor Service, Inc., Standard & Poors Corporation or Duff and as provided in this AgreementXxxxxx, Inc. or if (ii) any such organization shall have publicly announced that it has under surveillance or review, with possible negative implications, its rating of any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Agents and their counsel, this Agreement and all obligations of the Agents hereunder may be canceled at any time by the Agents. Notice of such cancellation shall be given to the Company in writing or by telephone or telegraph confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the offices of Xxxxx Xxxx & Xxxxxxxx, counsel for the Agents, at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, on the date of this AgreementCompany's debt securities.
Appears in 1 contract
Samples: Distribution Agreement (Maytag Corp)
