Conditions and Obligations. The obligation of the Dealer Manager to act as dealer manager hereunder shall at all times be subject, in its discretion, to the following conditions: (a) All representations and warranties of the Company contained herein or in any certificate or writing delivered hereunder at all times during the Offer and Solicitation shall be true and correct. The Company acknowledges that Sandler’s agreement to act, or to continue to act, as Dealer Manager at a time when it knows or should know that any such representation, warranty and agreement is or may be untrue or incorrect or not performed, as the case may be, shall be without prejudice to its right subsequently to cease so to act by reason of such untruth, incorrectness or nonperformance, as the case may be. (b) The Company shall have performed, at all times during the Offer and Solicitation, in all material respects, all of its obligations hereunder required as of such time to have been performed by it. (c) The Dealer Manager shall have received on the date hereof and on the Expiration Date an opinion from each of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsels for the Company, and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Executive Vice President and General Counsel of the Company, in form and substance satisfactory to you, and to such further effect as counsel to the Dealer Manager may reasonably request. (d) The Dealer Manager shall have received on the date hereof and on the Expiration Date an opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Dealer Manager. (e) The Dealer Manager shall have received letters, satisfactory in form to the Dealer Manager and their counsel, dated the date hereof (and reaffirmed and updated on the Expiration Date) and addressed to you, from each of PricewaterhouseCoopers LLP, independent certified public accountants for the Company until March 2012, and KPMG, independent certified public accountants for the Company since March 2012, containing statements and information of the type ordinarily included in accountants’ comfort letters with respect to the financial statements and certain financial information contained or incorporated by reference in the Offer and Solicitation Documents. (f) At the Expiration Date, there shall have been delivered to the Dealer Manager, on behalf of the Company, a certificate of the Chief Executive Officer and the Chief Financial Officer of the Company, dated as of such date, and stating that the representations and warranties set forth in Section 4 hereof are true and accurate as if made on such date. (g) The Dealer Manager shall have received a certificate executed by the Chief Financial Officer of the Company, dated the date hereof (and reaffirmed and updated on the Expiration Date) and addressed to you, in the form attached hereto as Exhibit A. (h) No stop order, restraining order or injunction has been issued by the Commission, any other governmental or regulatory authority or any court, and no litigation shall have been commenced or, to the Company’s knowledge, threatened before the Commission, any other governmental or regulatory authority, agency or any court, with respect to the transactions contemplated hereby that the Dealer Manager or its legal counsel believe makes it inadvisable for the Dealer Manager to continue to render services pursuant hereto, and it shall not have otherwise become unlawful under any law or regulation, federal, state, local or foreign, for the Dealer Manager to so act, or continue so to so act, as the case may be. (i) The Company shall have advised the Dealer Manager promptly of (i) the occurrence of any event which could cause the Company to withdraw, rescind or terminate the Offer or Solicitation, (ii) the occurrence of any event, or the discovery of any fact, the occurrence or existence of which the Company believes would make it necessary or advisable to make any change in the Offer and Solicitation Documents, (iii) the occurrence of any event, or the discovery of any fact, the occurrence or existence of which would cause any representation or warranty contained in this Agreement to be untrue or inaccurate, (iv) any proposal by the Company or requirement to make, amend or supplement any Offer and Solicitation Documents (including the documents incorporated by reference therein) or any filing in connection with the Offer and Solicitation pursuant to the Exchange Act or any other applicable law, rule or regulation, (v) its awareness of the issuance by any governmental or regulatory authority or agency of any comment or order or the taking of any other action concerning the Offer and Solicitation (and, if in writing, will have furnished the Dealer Manager with a copy thereof), (vi) its awareness of any material developments in connection with the Offer and Solicitation or the financing thereof, including, without limitation, the commencement of any lawsuit relating to the Offer and Solicitation, and (vii) any other information relating to the Offer and Solicitation, the Offer and Solicitation Documents or this Agreement which the Dealer Manager may from time to time reasonably request.
Appears in 1 contract
Conditions and Obligations. The obligation obligations of the Dealer Manager to act as dealer manager hereunder shall at all times be subject, in its discretion, to the following conditionsconditions that:
(a) All representations and warranties of the Company contained herein or in any certificate or writing delivered hereunder at all times during the Offer and Solicitation shall be true true, correct and correct. The Company acknowledges that Sandler’s agreement to actnot misleading, or to continue to act, as Dealer Manager at a time when it knows or should know that any such representation, warranty and agreement is or may be untrue or incorrect or not performed, as the case may be, shall be without prejudice to its right subsequently to cease so to act by reason of such untruth, incorrectness or nonperformance, as the case may be.
(b) The Company shall have performed, at all times during the Offer and Solicitation, in all material respects, all of its obligations hereunder required as of such time to have been performed by it.
(b) The Registration Statement shall have become effective on or prior to the Expiration Date.
(c) The Dealer Manager Counsel for the Company shall have received delivered to the Dealer Manager, on the date hereof and on the Expiration Date an opinion from each of ▇▇▇▇▇▇the Commencement Date and the Exchange Date and dated as of such dates, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLPrespectively, counsels for the Companya negative assurance or “10b-5” letter, and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Executive Vice President and General Counsel of a legal opinion covering the Companymatters set forth in Annex B hereto, in each case form and substance reasonably satisfactory to you, and to such further effect as counsel to the Dealer Manager may reasonably requestManager.
(d) The Dealer Manager RSM US LLP shall have received delivered to the Dealer Manager, on each of the date hereof Commencement Date and on the Expiration Exchange Date an opinion and dated as of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPsuch dates, special counsel respectively, a “comfort” letter in form and substance reasonably satisfactory to the Dealer Manager.
(e) The Dealer Manager Company shall have received letters, satisfactory in form to the Dealer Manager and their counsel, dated the date hereof (and reaffirmed and updated on the Expiration Date) and addressed to you, from each of PricewaterhouseCoopers LLP, independent certified public accountants for the Company until March 2012, and KPMG, independent certified public accountants for the Company since March 2012, containing statements and information of the type ordinarily included in accountants’ comfort letters with respect to the financial statements and certain financial information contained or incorporated by reference in the Offer and Solicitation Documents.
(f) At the Expiration Date, there shall have been delivered furnished to the Dealer Manager, on behalf each of the CompanyCommencement Date and on the Exchange Date and dated as of such dates, respectively, a certificate of its chief financial officer, with respect to certain financial data contained in the Chief Executive Officer Preliminary Prospectus and the Chief Financial Officer of Prospectus, providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the CompanyDealer Manager.
(f) The Company shall have furnished to the Dealer Manager, on the Exchange Date and dated as of such date, a certificate of the Chairman, Chief Executive Officer or President, and of the Chief Financial Officer, of the Company, stating that that: (i) the representations and warranties set forth in Section 4 hereof are true and accurate correct as if made on such date; (ii) no stop order or other order, injunction or denial of an application for approval, preventing or suspending the use of any of the Offering Documents, shall have been issued or occurred, and no proceedings, litigation or investigations shall have been initiated or threatened, by or before the Commission or any other agency or any court; and (iii) since the date of the most recent financial statements included or incorporated by reference in the Offering Documents (exclusive of any amendment or supplement thereto), there has been no material adverse change in or affecting the business, properties, management, condition (financial or otherwise), general affairs, shareholders’ equity, results of operations or prospects of the Company and its subsidiaries taken as a whole, except as set forth in the Offering Documents (exclusive of any amendment or supplement thereto).
(g) The Dealer Manager Company shall have received furnished to the Dealer Manager, on the Exchange Date and dated as of such date, a certificate executed by the Chief Financial Officer Secretary’s Certificate of the Company, dated the date hereof (in form and reaffirmed and updated on the Expiration Date) and addressed substance reasonably satisfactory to you, in the form attached hereto as Exhibit A.Dealer Manager.
(h) No stop order, restraining order or injunction has been issued by the Commission, any other governmental or regulatory authority or any court, and no litigation The Company shall have been commenced or, furnished to the Company’s knowledgeDealer Manager, threatened before on the CommissionExchange Date, any satisfactory evidence of the good standing of the Company in Delaware and its good standing as a foreign entity in such other governmental or regulatory authority, agency or any court, with respect to the transactions contemplated hereby that jurisdictions as the Dealer Manager may reasonably request, in each case in writing or its legal counsel believe makes it inadvisable for in any standard form of telecommunication from the Dealer Manager to continue to render services pursuant hereto, and it shall not have otherwise become unlawful under any law or regulation, federal, state, local or foreign, for the Dealer Manager to so act, or continue so to so act, as the case may beappropriate governmental authorities of such jurisdictions.
(i) Prior to the Exchange Date, the shares of Common Stock to be exchanged for Warrants shall have been approved for listing on the Exchange, subject to notice of issuance.
(j) The Company shall have promptly advised the Dealer Manager promptly of (i) the occurrence of any event which could cause the Company to withdraw, rescind or terminate the Offer Exchange Offers or Solicitationwould permit the Company to exercise any right not to exchange Common Stock for Warrants tendered under the Exchange Offers, (ii) the occurrence of any event, or the discovery of any fact, the occurrence or existence of which the Company it believes would make it necessary or advisable to make any change in the Offer and Solicitation Documents, (iii) the occurrence of any event, Offering Documents being used or the discovery of any fact, the occurrence or existence of which would cause any representation or warranty contained in this Agreement to be untrue or inaccurate, (iviii) any proposal by the Company or requirement to make, amend or supplement any Offer and Solicitation Documents (including the documents incorporated by reference therein) Offering Document or any filing in connection with the Offer and Solicitation Exchange Offers pursuant to the Exchange Act or any other applicable law, rule or regulation, (viv) its awareness of the issuance by any governmental or regulatory authority or agency of any comment or order or the taking of any other action concerning the Offer and Solicitation Exchange Offers (and, if in writing, will have furnished the Dealer Manager with a copy thereof), ) and (viv) its awareness of any material developments in connection with the Offer and Solicitation Exchange Offers or the financing thereof, including, without limitation, including the commencement of any lawsuit relating to the Offer and SolicitationExchange Offers.
(k) None of the Registration Statement or any amendment thereto will contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and none of the Prospectus or any supplement or amendment thereto will contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading; provided, however, that this condition shall not apply to any statements or omissions made in reliance upon and in conformity with the Dealer Manager Information.
(viil) No law, statute, rule, regulation, injunction, stop order or other order or denial of an application for approval shall have been enacted, adopted or issued, and no proceedings, litigation or investigations shall have been initiated or threatened by or before the Commission or any other agency or any court, preventing or suspending the use of any of the Offering Documents, or otherwise relating to (i) the making or the consummation of the Exchange Offers, (ii) the execution, delivery or performance by the Company of this Agreement or (iii) any of the transactions contemplated in the Offering Documents, which the Dealer Manager or its legal counsel in good faith believe makes it inadvisable for the Exchange Offers to continue or for the Dealer Manager to continue to render services pursuant hereto; and it shall not otherwise have become unlawful under any law, statute, rule, regulation, injunction or order for the Dealer Manager so to act, or continue so to act.
(m) Since the date of the most recent financial statements included or incorporated by reference in the Offering Documents (exclusive of any amendment or supplement thereto): (i) the Company shall not have sustained any 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 in the Offering Documents; and (ii) there shall not have been any change in the capital stock or long-term debt of the Company, or any change, or any development involving a prospective change, in or affecting the business, properties, general affairs, management, financial position, stockholders’ equity, results of operations or prospects of the Company, otherwise than as set forth in the Offering Documents, the effect of which, in each case described in clause (i) or (ii) of this paragraph, is, in the judgment of the Dealer Manager, so material and adverse as to make it impracticable or inadvisable to proceed with the Exchange Offers on the terms and in the manner contemplated in the Offering Documents.
(n) There shall not have occurred any of the following: (i) trading in any of the Company’s securities shall have been suspended or materially limited by the Commission or the Exchange, or trading in securities generally on the New York Stock Exchange, NYSE American, NASDAQ Global Select Market, NASDAQ Capital Market, or the Exchange or in the over-the-counter market, or trading in any securities of the Company on any exchange or in the over-the-counter market, shall have been suspended or materially limited, or minimum or maximum prices or a maximum range for prices shall have been established on any such exchange or in such market by the Commission, by such exchange or market or by any other regulatory body or governmental authority having jurisdiction; (ii) a banking moratorium shall have been declared by Federal or state authorities or a material disruption shall have occurred in commercial banking or securities settlement or clearance services in the United States; (iii) the United States shall have become engaged in hostilities, or the subject of an act of terrorism, or there shall have been an outbreak of or escalation in hostilities involving the United States, or there shall have been a declaration of a national emergency or war by the United States; or (iv) there shall have occurred such a material adverse change in general economic, political or financial conditions (or the effect of international conditions on the financial markets in the United States shall be such) as to make it, in each such case in the judgment of the Dealer Manager, impracticable or inadvisable to proceed with the Exchange Offers on the terms and in the manner contemplated in the Offering Documents.
(o) The Company shall have provided all other documents and other information relating to the Offer and SolicitationExchange Offers, the Offer and Solicitation Offering Documents or this Agreement which the Dealer Manager may from time to time reasonably request.
Appears in 1 contract
Sources: Dealer Manager Agreement (Priority Technology Holdings, Inc.)
Conditions and Obligations. The obligation of the Dealer Manager Managers to act as dealer manager Dealer Managers hereunder shall at all times be subject, in its their discretion, to the following conditionsconditions that:
(a) For the period from and after effectiveness of this Agreement and prior to the Exchange Date: (i) Charter Holdco shall have filed the Registration Statement with the SEC not later than the date hereof and the Registration Statement shall become effective prior to the Exchange Date; and (ii) no stop order refusing or suspending the effectiveness of the Registration Statement or any post-effective amendment shall have been issued or be in effect and no proceedings for such purpose shall have been instituted or threatened by the SEC.
(b) All representations and warranties of the Company Charter Holdco contained herein or in any certificate or writing delivered hereunder at all times during the Exchange Offer and Solicitation shall be true and correct. The Company acknowledges that Sandler’s agreement to act, or to continue to act, as Dealer Manager at a time when it knows or should know that any such representation, warranty and agreement is or may be untrue or incorrect or not performed, as the case may be, shall be without prejudice to its right subsequently to cease so to act by reason of such untruth, incorrectness or nonperformance, as the case may becorrect in all material respects.
(bc) The Company shall have performed, Charter Companies at all times during the Exchange Offer and Solicitationshall have performed, in all material respects, all of its their obligations hereunder required as of such time to have been performed by itthem.
(cd) The Dealer Manager General Counsel of Charter Holdco shall have received on delivered to the date hereof Dealer Managers an opinion, prior to the Commencement Date and on the Expiration Date an opinion from each Exchange Date, substantially in the form of ▇Exhibit C hereto.
(e) G▇▇▇▇▇, ▇▇D▇▇▇ & ▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & C▇▇▇▇▇▇▇ LLP, counsels counsel for Charter Holdco, shall have delivered to the CompanyDealer Managers an opinion, prior to the Commencement Date and on the Exchange Date, substantially in the form of Exhibit D hereto.
(f) D▇▇▇▇ W▇▇▇▇▇ ▇▇▇▇▇, Executive Vice President and General Counsel of the Company, in form and substance satisfactory to you, and to such further effect as counsel to the Dealer Manager may reasonably request.
(d) The Dealer Manager shall have received on the date hereof and on the Expiration Date an opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special regulatory counsel to Charter Holdco, shall have delivered to the Dealer ManagerManagers an opinion, prior to the Commencement Date and on the Exchange Date, substantially in the form of Exhibit E hereto.
(eg) The Dealer Manager No stop order, restraining order or injunction has been issued by the SEC or any court, and, except as disclosed in CCI’s filings with the SEC, no litigation shall have received lettersbeen commenced or, satisfactory in form to the Dealer Manager and their counselknowledge of Charter Holdco, dated threatened before the date hereof (and reaffirmed and updated on the Expiration Date) and addressed to youSEC or any court, from each of PricewaterhouseCoopers LLP, independent certified public accountants for the Company until March 2012, and KPMG, independent certified public accountants for the Company since March 2012, containing statements and information of the type ordinarily included in accountants’ comfort letters with respect to (i) the financial statements making or the consummation of the Exchange Offer, (ii) the execution, delivery or performance by Charter Holdco of this Agreement or (iii) any of the transactions in connection with, or contemplated by, the Offering Documents which the Dealer Managers or their legal counsel in good faith believes makes it inadvisable for the Dealer Managers to continue to render services pursuant hereto and certain financial information contained it shall not have otherwise become unlawful under any law or incorporated by reference in regulation, federal, state or local, for the Offer and Solicitation DocumentsDealer Managers so to act, or continue so to act, as the case may be.
(fh) At the Expiration Exchange Date, there shall have been delivered to the Dealer ManagerManagers, on behalf of the CompanyCharter Holdco, a certificate of the Chairman, Chief Executive Officer or President of Charter Holdco and the Chief Financial Officer of the CompanyCharter Holdco, dated as of such datethe Exchange Date, and stating that the representations and warranties set forth in Section 4 hereof are true and accurate in all material respects as if made on such date.
(g) The Dealer Manager shall have received a certificate executed by the Chief Financial Officer of the Company, dated the date hereof (and reaffirmed and updated on the Expiration Exchange Date) and addressed to you, in the form attached hereto as Exhibit A.
(h) No stop order, restraining order or injunction has been issued by the Commission, any other governmental or regulatory authority or any court, and no litigation shall have been commenced or, to the Company’s knowledge, threatened before the Commission, any other governmental or regulatory authority, agency or any court, with respect to the transactions contemplated hereby that the Dealer Manager or its legal counsel believe makes it inadvisable for the Dealer Manager to continue to render services pursuant hereto, and it shall not have otherwise become unlawful under any law or regulation, federal, state, local or foreign, for the Dealer Manager to so act, or continue so to so act, as the case may be.
(i) The Company At the Commencement Date and at the Exchange Date, Charter Holdco shall have requested and caused KPMG LLP to furnish to the Dealer Managers, comfort letters, dated respectively as of the Commencement Date and as of the Exchange Date, in form and substance reasonably satisfactory to the Dealer Managers.
(j) Charter Holdco shall have advised the Dealer Manager Managers promptly of (i) the occurrence of any event which which, in the reasonable judgment of Charter Holdco or its counsel, could cause Charter Holdco to withdraw, rescind or modify the Company Offering Documents, to withdraw, rescind or terminate the Exchange Offer or Solicitationwould permit Charter Holdco to exercise any right not to exchange the New Notes for the Outstanding Notes under the Exchange Offer, (ii) the occurrence of any event, or the discovery of any fact, the occurrence or existence of which the Company believes would make it necessary or advisable to make any change in the Offer and Solicitation Documents, (iii) the occurrence of any event, or the discovery of any fact, the occurrence or existence of which would cause any representation or warranty contained in this Agreement to be untrue or inaccurate, (iv) any proposal by the Company or requirement to make, amend or supplement any Offer and Solicitation Documents (including the documents incorporated by reference therein) or any filing in connection with the Offer and Solicitation pursuant to the Exchange Act or any other applicable law, rule or regulation, (v) its awareness of the issuance by any governmental or regulatory authority or agency of any comment or order or the taking of any other action concerning the Exchange Offer and Solicitation (and, if in writing, will have furnished the Dealer Manager Managers with a copy thereof), (viiii) its awareness of any material developments litigation or administrative or similar proceeding which is initiated or threatened in connection writing with respect to the Exchange Offer and Solicitation or the financing thereof, including, without limitation, the commencement of any lawsuit relating to the Offer and Solicitation, and (viiiv) any other information relating to the Offer and SolicitationExchange Offer, the Offer and Solicitation Offering Documents or this Agreement which the Dealer Manager Managers may from time to time reasonably request.
(k) At the Exchange Date, Charter Holdco shall have obtained all consents, approvals, authorizations and orders of, and shall have duly made all registrations, qualifications and filings with, any court or regulatory authority or other governmental agency or instrumentality required in connection with the making and consummation of the Exchange Offer and the execution, delivery and performance of this Agreement.
Appears in 1 contract
Sources: Dealer Manager Agreement (Charter Communications Inc /Mo/)
Conditions and Obligations. The obligation of the Dealer Manager Managers to act as dealer manager Dealer Managers hereunder shall at all times be subject, in its their discretion, to the following conditionsconditions that:
(a) All representations and warranties of the Company Republic contained herein or in any certificate or writing delivered hereunder at all times during as of the Offer Commencement Date, as of each date that any Additional Written Communications are published, sent, given or otherwise distributed throughout the continuance of the Transactions, and Solicitation as of the Settlement Date, shall be true and correct. The Company acknowledges that Sandler’s agreement to act, or to continue to act, as Dealer Manager at a time when it knows or should know that any such representation, warranty and agreement is or may be untrue or incorrect or not performed, as the case may be, shall be without prejudice to its right subsequently to cease so to act by reason of such untruth, incorrectness or nonperformance, as the case may be.
(b) The Company shall have performed, Republic at all times during the Offer and Solicitation, in all material respects, Transactions shall have performed all of its obligations hereunder required as of such time to have been performed by it.
(c) The Dealer Manager shall have received on the date hereof and on the Expiration Date an opinion from each of ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. Counsel for the Republic, shall have furnished to the Dealer Managers: (i) an opinion and negative assurance letter, dated as of the Commencement Date, in form and substance reasonably satisfactory to the Dealer Managers, the form of which is attached as Exhibit A hereto, and (ii) an opinion and negative assurance letter, dated as of the Settlement Date, in form and substance reasonably satisfactory to the Dealer Managers, the form of which is attached as Exhibit B hereto. Such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters. In rendering their opinions and negative assurance letters, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP may rely as to all matters of Argentine law upon the opinion of the Treasury Attorney General (Procurador del Tesoro de la Nación) for the Republic referred to in paragraph (d) of this Section 5.
(d) The Treasury Attorney General (Procurador del Tesoro de la Nación) for the Republic shall have furnished to the Dealer Managers, at the request of the Republic, its written opinions, dated as of the Commencement Date and ▇▇as of the Settlement Date, and addressed to the Dealer Managers, the forms of which are attached as Exhibit C and D hereto, respectively.
(e) Shearman & Sterling LLP, U.S. Counsel for the Dealer Managers, shall have delivered to the Dealer Managers an opinion and a negative assurance letter, dated as of the Commencement Date and as of the Settlement Date, in form and substance satisfactory to the Dealer Managers.
(f) Bruchou, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsels for the Company, and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Executive Vice President and General Counsel Argentine counsel for the Dealer Managers, shall have delivered to the Dealer Managers an opinion, dated as of the CompanyCommencement Date and as of the Settlement Date, in form and substance satisfactory to you, and to such further effect as counsel to the Dealer Manager may reasonably request.
(d) The Dealer Manager shall have received on the date hereof and on the Expiration Date an opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special counsel to the Dealer Manager.
(e) The Dealer Manager shall have received letters, satisfactory in form to the Dealer Manager and their counsel, dated the date hereof (and reaffirmed and updated on the Expiration Date) and addressed to you, from each of PricewaterhouseCoopers LLP, independent certified public accountants for the Company until March 2012, and KPMG, independent certified public accountants for the Company since March 2012, containing statements and information of the type ordinarily included in accountants’ comfort letters with respect to the financial statements and certain financial information contained or incorporated by reference in the Offer and Solicitation Documents.
(f) At the Expiration Date, there shall have been delivered to the Dealer Manager, on behalf of the Company, a certificate of the Chief Executive Officer and the Chief Financial Officer of the Company, dated as of such date, and stating that the representations and warranties set forth in Section 4 hereof are true and accurate as if made on such dateManagers.
(g) No stop order suspending the effectiveness of the Registration Statement shall be in effect on the Commencement Date or the Settlement Date and no proceedings for that purpose shall be pending before, or threatened by, the Commission on the Commencement Date or the Settlement Date. The Dealer Manager Managers shall have received, prior to the Settlement Date, a certificate dated as of the Settlement Date and signed by a duly authorized officer of the Republic to the effect that no such stop order is in effect and that no proceeding for such purpose is pending before, or, to the knowledge of the Republic, threatened by the Commission.
(h) On or prior to the Settlement Date, the Republic shall have furnished to the Dealer Managers a copy of such confirmation by the Central Bank of Argentina (Banco Central de la República Argentina) required to be delivered under Argentine law in accordance with Section 61 of Law No. 24,156 and implementing regulations.
(i) On or prior to the Settlement Date, the Republic shall have furnished to the Dealer Managers a copy of the internal opinion of the Treasury Attorney General (Procurador del Tesoro de la Nación) required to be issued under Argentine law.
(j) On or prior to the Settlement Date, the Republic shall have furnished to the Dealer Managers a copy of a resolution of the Ministry of Economy approving the Transaction Documents and the consummation of the transactions contemplated hereby required to be issued under Argentine law.
(k) On or prior to the Settlement Date, the Dealer Managers shall have received a certificate of the Republic, executed by the Chief Financial Officer a duly qualified senior official of the Company, dated Republic substantially to the date hereof (and reaffirmed and updated on the Expiration Date) and addressed to you, in the form attached hereto as Exhibit A.following effect:
(hi) No stop orderattaching certified copies of all laws, restraining order decrees, resolutions, approvals, authorizations, permits, consents, exemptions, licenses, opinions and other actions of or injunction by, and notices to or for filings or registrations with the Republic (the “Applicable Authorizations”), necessary for the Republic to execute, deliver and perform the Transaction Documents or the validity or enforceability thereof;
(ii) certifying that none of such Applicable Authorizations has been amended and that each of such Applicable Authorizations is in full force and effect;
(iii) attaching an incumbency certificate issued by the CommissionSecretary or Under-Secretary of Finance of the Republic, any other governmental or regulatory authority or any court, and no litigation shall have been commenced or, certifying as to the Company’s knowledge, threatened before the Commission, any other governmental or regulatory authority, agency incumbency and specimen signatures of the persons who have executed or any court, will execute the Transaction Documents on behalf of the Republic; and
(iv) stating that the Registration Statement and the Final Prospectus (except the financial and statistical information contained therein) do not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein (with respect to the transactions contemplated hereby that Final Prospectus as amended or supplemented as of any such time, in the Dealer Manager or its legal counsel believe makes it inadvisable for light of the Dealer Manager to continue to render services pursuant hereto, and it shall circumstances under which they were made) not have otherwise become unlawful under any law or regulation, federal, state, local or foreign, for the Dealer Manager to so act, or continue so to so act, as the case may bemisleading.
(il) The Company Republic shall have advised the Dealer Manager Managers promptly of (i) the occurrence of any event which could cause the Company Republic to withdraw, rescind or terminate the Offer Transactions or Solicitationwould permit the Republic to exercise any right not to consummate the Transactions, (ii) any requirement after the occurrence of date hereof to amend the Solicitation and Exchange Documents being used or any eventfiling in connection with the Transactions pursuant to the Exchange Act or any applicable law, rule or the discovery of any fact, the occurrence or existence of which the Company believes would make it necessary or advisable to make any change in the Offer and Solicitation Documentsregulation, (iii) the occurrence of any event, or the discovery of any fact, the occurrence or existence of fact which it believes would cause any representation or warranty contained in this Agreement Section 4 to be untrue or inaccurate, (iv) any proposal by the Company or requirement to make, amend or supplement any Offer and Solicitation Documents (including the documents incorporated by reference therein) or any filing in connection with the Offer and Solicitation pursuant to the Exchange Act or any other applicable law, rule or regulation, (v) its awareness of the issuance by any governmental or regulatory authority or agency of any comment or order or the taking of any other action concerning the Offer and Solicitation Transactions (and, if in writing, will have furnished the Dealer Manager Managers with a copy thereof), (viv) its awareness of any material developments in connection with the Offer and Solicitation or the financing thereofTransactions, including, without limitation, the commencement of any lawsuit relating to the Offer and Solicitation, Transactions and (viivi) any other information relating to the Offer and SolicitationTransactions, the Offer Solicitation and Solicitation Exchange Documents or this Agreement which the Dealer Manager Managers may from time to time reasonably request.
(m) On the Settlement Date, as the Republic shall have executed, and the Trustee shall have authenticated the New Notes, and the Dealer Managers shall have received executed copies thereof.
(n) On the date hereof, the Dealer Managers shall have received evidence of the agreement of the person for the time being acting as, or discharging the function of, Banco de la Nación Argentina, to act as the Process Agent of the Republic, as described in Section 9 hereof.
(o) The New Notes shall be eligible for clearance and settlement through DTC, Euroclear, and Clearstream.
(p) On or prior to the Settlement Date, counsel for the Dealer Managers shall have been furnished with such other documents, opinions and certificates as they may reasonably require for the purpose of enabling them to pass upon the Transactions 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, contained herein.
(q) The Dealer Managers may waive, at their sole discretion and upon such terms as they deem appropriate, any of the conditions set forth above.
Appears in 1 contract
Sources: Dealer Manager and Solicitation Agent Agreement (Republic of Argentina)
Conditions and Obligations. The obligation of the Dealer Manager to act as dealer manager Dealer Manager hereunder shall at all times be subject, in its discretion, to the following conditionsconditions that:
(a) All representations and warranties of the Company contained herein and the Co-Issuer that are qualified as to materiality or Material Adverse Effect shall be true and correct in all respects and those not so qualified shall be true and correct in all material respects as of the date hereof, as of each Mailing Date and as of each Closing Date, except to the extent any certificate or writing delivered hereunder such representations and warranties expressly relate to an earlier date.
(b) Each of the Company and the Co-Issuer at all times during the Tender Offer and Solicitation shall be true and correct. The Company acknowledges that Sandler’s agreement to act, or to continue to act, as Dealer Manager at a time when it knows or should know that any such representation, warranty and agreement is or may be untrue or incorrect or not performed, as the case may be, shall be without prejudice to its right subsequently to cease so to act by reason of such untruth, incorrectness or nonperformance, as the case may be.
(b) The Company shall have performed, at all times during the Offer and Solicitation, in all material respects, all of its obligations hereunder required as of such time to have been performed by it.
(c) The Dealer Manager Counsel for the Company shall have received on the date hereof and on the Expiration Date an opinion from each of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsels for the Company, and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Executive Vice President and General Counsel of the Company, in form and substance satisfactory to you, and to such further effect as counsel delivered to the Dealer Manager may reasonably requestan opinion, (i) prior to the commencement of the Tender Offer, covering the matters set forth in Exhibit A-1 hereto and (ii) on each Closing Date, covering the matters set forth in Exhibit A-2.
(d) The No stop order, restraining order or injunction has been issued by the SEC or any court, and no litigation shall have been commenced or threatened before the SEC or any court, with respect to (i) the making or the consummation of the Tender Offer, (ii) the execution, delivery or performance by the Company of this Agreement or (iii) any of the transactions in connection with, or contemplated by, the Tender Documents which the Dealer Manager shall have received on the date hereof and on the Expiration Date an opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, special or its legal counsel to in good faith believes makes it inadvisable for the Dealer ManagerManager to continue to render services pursuant hereto and it shall not have otherwise become unlawful under any law or regulation, federal, state or local, for the Dealer Manager so to act, or continue so to act, as the case may be.
(e) The Dealer Manager shall have received letters, satisfactory in form to the Dealer Manager and their counsel, dated the date hereof (and reaffirmed and updated on the Expiration Date) and addressed to you, from At each of PricewaterhouseCoopers LLP, independent certified public accountants for the Company until March 2012, and KPMG, independent certified public accountants for the Company since March 2012, containing statements and information of the type ordinarily included in accountants’ comfort letters with respect to the financial statements and certain financial information contained or incorporated by reference in the Offer and Solicitation Documents.
(f) At the Expiration Closing Date, there shall have been delivered to the Dealer Manager, on behalf of the Company, a certificate of the Chairman, Chief Executive Officer or President and the Chief Financial Officer of the Company, dated as of such dateClosing Date, and stating that the representations and warranties set forth in Section 4 hereof are true and accurate as if made on such dateClosing Date.
(g) The Dealer Manager shall have received a certificate executed by the Chief Financial Officer of the Company, dated the date hereof (and reaffirmed and updated on the Expiration Date) and addressed to you, in the form attached hereto as Exhibit A.
(h) No stop order, restraining order or injunction has been issued by the Commission, any other governmental or regulatory authority or any court, and no litigation shall have been commenced or, to the Company’s knowledge, threatened before the Commission, any other governmental or regulatory authority, agency or any court, with respect to the transactions contemplated hereby that the Dealer Manager or its legal counsel believe makes it inadvisable for the Dealer Manager to continue to render services pursuant hereto, and it shall not have otherwise become unlawful under any law or regulation, federal, state, local or foreign, for the Dealer Manager to so act, or continue so to so act, as the case may be.
(if) The Company shall have advised the Dealer Manager promptly of (i) the occurrence of any event which could would reasonably be expected to cause the Company to withdraw, rescind or terminate the Tender Offer or Solicitationwould permit the Company to exercise any right not to purchase Notes tendered under the Tender Offer, (ii) the occurrence of any event, or the discovery of any fact, the occurrence or existence of which the Company it believes would make it necessary or advisable to make any change in the Offer and Solicitation Documents, (iii) the occurrence of any event, Tender Documents being used or the discovery of any fact, the occurrence or existence of which would cause any representation or warranty contained in this Agreement that is qualified as to materiality or Material Adverse Effect to be untrue or inaccurateinaccurate in any respect or any representation or warranty contained in this Agreement that is not so qualified to be untrue or inaccurate in any material respect, (iviii) any proposal by the Company or requirement to make, amend or supplement any Offer and Solicitation Documents (including the documents incorporated by reference therein) Tender Document or any filing in connection with the Tender Offer and Solicitation pursuant to the Exchange Act or any other applicable law, rule or regulation, (viv) its awareness of the issuance by any governmental or regulatory authority or agency of any comment or order or the taking of any other action concerning the Tender Offer and Solicitation (and, if in writing, will have furnished the Dealer Manager with a copy thereof), (viv) its awareness of any material developments in connection with the Tender Offer and Solicitation or the financing thereof, including, without limitation, the commencement of any lawsuit relating to the Tender Offer and Solicitation, and (viivi) any other information relating to the Offer and SolicitationTender Offer, the Offer and Solicitation Tender Documents or this Agreement which the Dealer Manager may from time to time reasonably request.
Appears in 1 contract
Sources: Dealer Manager and Solicitation Agent Agreement (Suburban Propane Partners Lp)
Conditions and Obligations. The obligation of the Dealer Manager Managers to act as dealer manager Dealer Managers hereunder shall at all times be subject, in its their discretion, to the following conditionsconditions that:
(a) For the period from and after effectiveness of this Agreement and prior to the Exchange Date: (i) the Charter Companies shall have filed the Registration Statement with the SEC not later than the date hereof and the Registration Statement shall become effective prior to the Exchange Date; and (ii) no stop order refusing or suspending the effectiveness of the Registration Statement or any post-effective amendment shall have been issued or be in effect and no proceedings for such purpose shall have been instituted or threatened by the SEC.
(b) All representations and warranties of the Company Charter Companies contained herein or in any certificate or writing delivered hereunder at all times during the Exchange Offer and Solicitation shall be true and correct. The Company acknowledges that Sandler’s agreement to act, or to continue to act, as Dealer Manager at a time when it knows or should know that any such representation, warranty and agreement is or may be untrue or incorrect or not performed, as the case may be, shall be without prejudice to its right subsequently to cease so to act by reason of such untruth, incorrectness or nonperformance, as the case may becorrect in all material respects.
(bc) The Company shall have performed, Charter Companies at all times during the Exchange Offer and Solicitationshall have performed, in all material respects, all of its their obligations hereunder required as of such time to have been performed by itthem.
(cd) The Dealer Manager General Counsel of the Charter Companies, shall have received on delivered to the date hereof Dealer Managers an opinion, prior to the Commencement Date and on the Expiration Date an opinion from each Exchange Date, substantially in the form of Exhibit C hereto.
(e) Gibson, Dunn & Crutcher LLP, counsel for the Charter Companies, sh▇▇▇ ▇▇ve ▇▇▇ive▇▇▇ ▇▇ ▇he Dealer Managers an opinion, prior to the Commencement Date and on the Exchange Date, substantially in the form of Exhibit D hereto.
(f) Cole, Raywid & Braverman, L.L.P., special regulatory counsel to th▇ ▇▇arter Compa▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP and ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsels for the Company, and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Executive Vice President and General Counsel of the Company, in form and substance satisfactory to you, and to such further effect as counsel ll have delivered to the Dealer Manager may reasonably requestManagers an opinion, prior to the Commencement Date and on the Exchange Date, substantially in the form of Exhibit E hereto.
(dg) The Dealer Manager No stop order, restraining order or injunction has been issued by the SEC or any court, and, except as disclosed in the Charter Companies' filings with the SEC, no litigation shall have received on the date hereof and on the Expiration Date an opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLPbeen commenced, special counsel or to the knowledge of the Charter Companies, threatened before the SEC or any court, with respect to (i) the making or the consummation of the Exchange Offer, (ii) the execution, delivery or performance by the Charter Companies of this Agreement or (iii) any of the transactions in connection with, or contemplated by, the Offering Documents which the Dealer ManagerManagers or their legal counsel in good faith believes makes it inadvisable for the Dealer Managers to continue to render services pursuant hereto and it shall not have otherwise become unlawful under any law or regulation, federal, state or local, for the Dealer Managers so to act, or continue so to act, as the case may be.
(e) The Dealer Manager shall have received letters, satisfactory in form to the Dealer Manager and their counsel, dated the date hereof (and reaffirmed and updated on the Expiration Date) and addressed to you, from each of PricewaterhouseCoopers LLP, independent certified public accountants for the Company until March 2012, and KPMG, independent certified public accountants for the Company since March 2012, containing statements and information of the type ordinarily included in accountants’ comfort letters with respect to the financial statements and certain financial information contained or incorporated by reference in the Offer and Solicitation Documents.
(fh) At the Expiration Exchange Date, there shall have been delivered to the Dealer ManagerManagers, on behalf of the CompanyCharter Companies, a certificate of the Chairman, Chief Executive Officer or President of Charter Holdings and the Chief Financial Officer of the CompanyCharter Holdings, dated as of such datethe Exchange Date, and stating that the representations and warranties set forth in Section 4 hereof are true and accurate in all material respects as if made on such date.
(g) The Dealer Manager shall have received a certificate executed by the Chief Financial Officer of the Company, dated the date hereof (and reaffirmed and updated on the Expiration Exchange Date) and addressed to you, in the form attached hereto as Exhibit A.
(h) No stop order, restraining order or injunction has been issued by the Commission, any other governmental or regulatory authority or any court, and no litigation shall have been commenced or, to the Company’s knowledge, threatened before the Commission, any other governmental or regulatory authority, agency or any court, with respect to the transactions contemplated hereby that the Dealer Manager or its legal counsel believe makes it inadvisable for the Dealer Manager to continue to render services pursuant hereto, and it shall not have otherwise become unlawful under any law or regulation, federal, state, local or foreign, for the Dealer Manager to so act, or continue so to so act, as the case may be.
(i) At the Commencement Date and at the Exchange Date, the Charter Companies shall have requested and caused KPMG LLP to furnish to the Dealer Managers, comfort letters, dated respectively as of the Commencement Date and as of the Exchange Date, in form and substance reasonably satisfactory to the Dealer Managers.
(j) The Company Charter Companies shall have advised the Dealer Manager Managers promptly of (i) the occurrence of any event which which, in the reasonable judgment of the Charter Companies or their counsel could cause the Company Charter Companies to withdraw, rescind or modify the Offering Documents, to withdraw, rescind or terminate the Exchange Offer or Solicitationwould permit the Charter Companies to exercise any right not to exchange cash and New Securities for the Outstanding Notes under the Exchange Offer, (ii) the occurrence of any event, or the discovery of any fact, the occurrence or existence of which the Company believes would make it necessary or advisable to make any change in the Offer and Solicitation Documents, (iii) the occurrence of any event, or the discovery of any fact, the occurrence or existence of which would cause any representation or warranty contained in this Agreement to be untrue or inaccurate, (iv) any proposal by the Company or requirement to make, amend or supplement any Offer and Solicitation Documents (including the documents incorporated by reference therein) or any filing in connection with the Offer and Solicitation pursuant to the Exchange Act or any other applicable law, rule or regulation, (v) its awareness of the issuance by any governmental or regulatory authority or agency of any comment or order or the taking of any other action concerning the Exchange Offer and Solicitation (and, if in writing, will have furnished the Dealer Manager Managers with a copy thereof), (viiii) its awareness of any material developments litigation or administrative or similar proceeding which is initiated or threatened in connection writing with respect to the Exchange Offer and Solicitation or the financing thereof, including, without limitation, the commencement of any lawsuit relating to the Offer and Solicitation, and (viiiv) any other information relating to the Offer and SolicitationExchange Offer, the Offer and Solicitation Offering Documents or this Agreement which the Dealer Manager Managers may from time to time reasonably request.
(k) At the Exchange Date, the Charter Companies shall have obtained all consents, approvals, authorizations and orders of, and shall have duly made all registrations, qualifications and filings with, any court or regulatory authority or other governmental agency or instrumentality required in connection with the making and consummation of the Exchange Offer and the execution, delivery and performance of this Agreement.
Appears in 1 contract