Conditions of Obligation. Your obligation to solicit offers to purchase the Securities in your capacity as agent of the Company and your obligation to purchase Securities as principal pursuant to any Terms Agreement or otherwise and the obligations of purchasers to purchase Securities pursuant to purchase offers solicited by you and accepted by the Company will be subject to the accuracy of the representations and warranties on the part of the Company herein, to the accuracy of the statements of the Company’s officers made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by the Company of all covenants and agreements herein contained on its part to be performed and observed (in the case of an Agent’s obligation to solicit offers to purchase Securities, at the time of such solicitation, and, in the case of an Agent’s or any other purchaser’s obligation to purchase Securities, at the time the Company accepts the offer to purchase such Securities and at the applicable Settlement Date) and (in each case) to the following additional conditions precedent: (a) At the Closing Time and at each Settlement Date with respect to any applicable Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received: (i) The opinion or opinions (including the 10b-5 letter), dated as of such time, of M▇▇▇▇ ▇▇▇▇▇ LLP, counsel to the Company, in a form and substance satisfactory to you, to the effect set forth in Exhibit C hereto. (ii) The opinion or opinions, dated as of such time, of the General Counsel of the Company, in a form and substance satisfactory to you, to the effect set forth in Exhibit D hereto. (iii) The opinion or opinions of your counsel, relating to the validity of the Securities, the Indentures, this Agreement, such other matters as the Agent or Agents receiving such opinion may request and the Registration Statement, the General Disclosure Package (if applicable) and the Prospectus. (b) At the Closing Time and at each Settlement Date with respect to any Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received a certificate of the Chairman, Vice Chairman, President or a Vice President of the Company, dated as of the Closing Time and, if called for by such Terms Agreement, dated as of the Settlement Date for such transaction, in each case, to the effect (i) that there has been no downgrading, nor any notice given of any potential or intended downgrading, or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any nationally recognized statistical rating organization since the date of the Terms Agreement (if such certificate is called for by such Terms Agreement), (ii) that the representations and warranties of the Company contained in Section 1 are true and correct with the same force and effect as though expressly made at and as of the date of such certificate, (iii) that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied pursuant to this Agreement at or prior to the date of such certificate and (iv) that, to the best of the Company’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission. (c) At the Closing Time, at the date of any Terms Agreement and on the applicable Settlement Date with respect to any such Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received from Ernst & Young LLP (or another nationally recognized firm of independent public accountants), a letter, dated as of the Closing Time or the date of the Terms Agreement, and a bring-down letter, dated as of such Settlement Date, as applicable, in a form and substance satisfactory to you, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to certain financial information contained in or incorporated by reference into the General Disclosure Package and the Prospectus, and confirming that they are independent public accountants with respect to the Company and its subsidiaries within the meaning of the 1933 Act and the 1933 Act Regulations. All financial statements and schedules included in materials incorporated by reference in the General Disclosure Package and the Prospectus shall be deemed included in the General Disclosure Package and the Prospectus for purposes of this subsection. (d) At the Closing Time and at each Settlement Date with respect to any Terms Agreement to which you are a party, if called for by such Terms Agreement, the counsel for the Agents shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale of the Securities as herein contemplated and related proceedings, or in order to evidence the accuracy and completeness of any of the representations and warranties, or the fulfillment of any of the conditions, herein contained; and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be satisfactory in a form and substance to the Agents and their counsel. Your obligation to solicit offers to purchase the Securities in your capacity as Agent for the Company, your obligation to purchase Securities as principal pursuant to any Terms Agreement or otherwise and the obligations of purchasers to purchase Securities pursuant to purchase offers solicited by you and accepted by the Company will be subject to the following further conditions: (i) there shall not have been, since the date of such Terms Agreement or since the respective dates as of which information is given in the Registration Statement, the General Disclosure Package and the Prospectus, any Material Adverse Effect, other than as set forth in the General Disclosure Package and the Prospectus, as amended or supplemented at the time of such solicitation or at the time such offer to purchase was made, and (ii) there shall not have occurred any outbreak or escalation of hostilities or any material change in financial markets or other calamity or crisis (including, without limitation, an act of terrorism) the effect of which is such as to make it, in your judgment (or, in the case of a syndicated issue, in the judgment of the book-running lead manager(s)), impracticable or inadvisable to market the Securities or enforce contracts for the sale of the Securities, and (iii) trading in securities of the Company shall not have been suspended by the Commission or a national securities exchange, nor shall trading generally on either the Nasdaq Global Market or the New York Stock Exchange have been suspended, or minimum or maximum prices for trading of securities generally have been fixed, or maximum ranges for prices for securities (other than trading limits currently in effect and other similar trading limits) have been required, or trading otherwise materially limited, by either of said exchanges or by order of the Commission or any other governmental authority, nor shall a banking moratorium have been declared by either Federal or New York authorities nor shall a banking moratorium have been declared by the relevant authorities in the country or countries of origin of any foreign currency or currencies in which the Securities are denominated or payable, and (iv) there shall not have been a material disruption in commercial banking or securities settlement or clearance services in the United States, and (v) the rating assigned by any nationally recognized statistical rating organization to any debt securities of the Company as of the date of the applicable Terms Agreement or the date that the applicable purchase offer was presented to the Company, as the case may be, shall not have been downgraded from that date to the applicable Settlement Date nor shall any notice have been given by any such nationally recognized statistical rating organization of any intended or potential downgrading or any review for possible change that does not indicate the direction of the possible change in such rating and (vi) the Prospectus, at the time it was required to be delivered to a purchaser of the Securities, shall not have contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at such time, not misleading. If any condition specified in this Section 5 shall not have been fulfilled, any Terms Agreement to which you are a party and any agreement to purchase Securities from the Company pursuant to a purchase offer solicited by you as Agent may be terminated insofar as it applies to you (or, if terminated by the book-running lead manager of a syndicated issue, as it applies to all Agents party thereto) or to a prospective purchaser, in the case of a solicited purchase offer, by notice to the Company at any time at or prior to the Closing Time or applicable Settlement Date, and such termination shall be without liability of any party to any other party, except that the covenants set forth in Section 3(f) hereof, the provisions of Section 4 hereof, the indemnity and contribution agreement set forth in Sections 7 and 8 hereof, and the provisions of Sections 10 and 13 hereof shall remain in effect.
Appears in 1 contract
Conditions of Obligation. Your The Dealer Managers’ obligation to solicit offers to purchase act as a dealer manager hereunder shall at all times be subject, in the Securities in your capacity as agent of the Company and your obligation to purchase Securities as principal pursuant to any Terms Agreement or otherwise and the obligations of purchasers to purchase Securities pursuant to purchase offers solicited by you and accepted by the Company will be subject to the accuracy of the representations and warranties on the part of the Company hereinDealer Managers’ discretion, to the accuracy of the statements of the Company’s officers made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by the Company of all covenants and agreements herein contained on its part to be performed and observed (in the case of an Agent’s obligation to solicit offers to purchase Securities, at the time of such solicitation, and, in the case of an Agent’s or any other purchaser’s obligation to purchase Securities, at the time the Company accepts the offer to purchase such Securities and at the applicable Settlement Date) and (in each case) to the following additional conditions precedentthat:
(a) At All representations, warranties and other statements of the Closing Time Commission contained herein are now, and at each Settlement Date with respect to any applicable Terms Agreement to which you are a partyall times during the Tender Program, if called for by such Terms Agreementwill be, you true and correct.
(b) The Commission at all times during the Tender Program shall have received:performed all of its obligations hereunder required to have been performed.
(i) The opinion or opinions (including the 10b-5 letter), dated as of such time, of M▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP▇▇▇▇▇▇▇ & ▇▇▇▇▇, counsel a Professional Corporation, Newport Beach, California (“Bond Counsel”), shall have furnished to the CompanyDealer Managers, concurrently with the execution of this Agreement, its opinions, dated the date of the Invitation and in a the forms attached hereto as [Annex B-1].
(ii) ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Disclosure Counsel, shall have furnished to the Dealer Managers, concurrently with the execution of this Agreement, an opinion in form and substance satisfactory to you, to the effect set forth Dealers in Exhibit C heretothe form attached hereto as [Annex B-2].
(iiiii) ▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP shall have furnished to the Dealer Managers, concurrently with the execution of this Agreement, an opinion in in the form attached hereto as [Annex B-3].
(iv) [The opinion or Dealer Managers shall have received opinions, dated as of such timethe Launch Date and as of the Settlement Date, of substantially in the forms attached hereto as [Annex B-4 and Annex B-5], respectively, from the General Counsel of the Company, in a form and substance satisfactory to you, to the effect set forth in Exhibit D hereto.
(iii) The opinion or opinions of your counsel, relating to the validity of the Securities, the Indentures, this Agreement, such other matters as the Agent or Agents receiving such opinion may request and the Registration Statement, the General Disclosure Package (if applicable) and the Prospectus.
(b) At the Closing Time and at each Settlement Date with respect to any Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received a certificate of the Chairman, Vice Chairman, President or a Vice President of the Company, dated as of the Closing Time and, if called for by such Terms Agreement, dated as of the Settlement Date for such transaction, in each case, to the effect (i) that there has been no downgrading, nor any notice given of any potential or intended downgrading, or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any nationally recognized statistical rating organization since the date of the Terms Agreement (if such certificate is called for by such Terms Agreement), (ii) that the representations and warranties of the Company contained in Section 1 are true and correct with the same force and effect as though expressly made at and as of the date of such certificate, (iii) that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied pursuant to this Agreement at or prior to the date of such certificate and (iv) that, to the best of the Company’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission.
(c) At the Closing Time, at the date of any Terms Agreement and on the applicable Settlement Date with respect to any such Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received from Ernst & Young LLP (or another nationally recognized firm of independent public accountants), a letter, dated as of the Closing Time or the date of the Terms Agreement, and a bring-down letter, dated as of such Settlement Date, as applicable, in a form and substance satisfactory to you, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to certain financial information contained in or incorporated by reference into the General Disclosure Package and the Prospectus, and confirming that they are independent public accountants with respect to the Company and its subsidiaries within the meaning of the 1933 Act and the 1933 Act Regulations. All financial statements and schedules included in materials incorporated by reference in the General Disclosure Package and the Prospectus shall be deemed included in the General Disclosure Package and the Prospectus for purposes of this subsection].
(d) At No stop order, restraining order or injunction has been issued by the Closing Time SEC or any court of competent jurisdiction, and at each Settlement Date no litigation shall have been commenced or threatened before the SEC or any court, with respect to any Terms Agreement to which you are a party, if called for by such Terms Agreement, (i) the counsel for making or the Agents shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale consummation of the Securities as herein contemplated and related proceedingsTender Program, (ii) the execution, delivery or in order to evidence performance by the accuracy and completeness Commission of this Agreement or (iii) any of the representations and warrantiestransactions in connection with, or contemplated by, the fulfillment of any of Tender Materials which the conditions, herein contained; and all proceedings taken by the Company Dealer Managers or their legal counsel in connection with the issuance and sale of the Securities as herein contemplated shall be satisfactory in a form and substance to the Agents and their counsel. Your obligation to solicit offers to purchase the Securities in your capacity as Agent good faith believes makes it impossible for the Company, your obligation Dealer Managers to purchase Securities as principal continue to render services pursuant to any Terms Agreement or otherwise hereto and the obligations of purchasers to purchase Securities pursuant to purchase offers solicited by you and accepted by the Company will be subject to the following further conditions: (i) there it shall not have beenotherwise become unlawful under any law or regulation, since the date of such Terms Agreement federal, state or since the respective dates as of which information is given in the Registration Statementlocal, the General Disclosure Package and the Prospectus, any Material Adverse Effect, other than as set forth in the General Disclosure Package and the Prospectus, as amended or supplemented at the time of such solicitation or at the time such offer to purchase was made, and (ii) there shall not have occurred any outbreak or escalation of hostilities or any material change in financial markets or other calamity or crisis (including, without limitation, an act of terrorism) the effect of which is such as to make it, in your judgment (or, in the case of a syndicated issue, in the judgment of the book-running lead manager(s)), impracticable or inadvisable to market the Securities or enforce contracts for the sale of the Securities, and (iii) trading in securities of the Company shall not have been suspended by the Commission or a national securities exchange, nor shall trading generally on either the Nasdaq Global Market or the New York Stock Exchange have been suspendedDealer Managers so to act, or minimum or maximum prices for trading of securities generally have been fixed, or maximum ranges for prices for securities (other than trading limits currently in effect and other similar trading limits) have been required, or trading otherwise materially limited, by either of said exchanges or by order of the Commission or any other governmental authority, nor shall a banking moratorium have been declared by either Federal or New York authorities nor shall a banking moratorium have been declared by the relevant authorities in the country or countries of origin of any foreign currency or currencies in which the Securities are denominated or payable, and (iv) there shall not have been a material disruption in commercial banking or securities settlement or clearance services in the United States, and (v) the rating assigned by any nationally recognized statistical rating organization continue so to any debt securities of the Company as of the date of the applicable Terms Agreement or the date that the applicable purchase offer was presented to the Companyact, as the case may be.
(e) At the Closing Date, there shall not have been downgraded from that date delivered to the applicable Settlement Date nor shall any notice have been given by any such nationally recognized statistical rating organization of any intended or potential downgrading or any review for possible change that does not indicate the direction Dealer Managers, on behalf of the possible change in such rating and (vi) the ProspectusCommission, at the time it was required to be delivered to a purchaser certificate of an authorized officer of the SecuritiesCommission, shall not have contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at such time, not misleading. If any condition specified in this Section 5 shall not have been fulfilled, any Terms Agreement to which you are a party and any agreement to purchase Securities from the Company pursuant to a purchase offer solicited by you as Agent may be terminated insofar as it applies to you (or, if terminated by the book-running lead manager of a syndicated issue, as it applies to all Agents party thereto) or to a prospective purchaser, in the case of a solicited purchase offer, by notice to the Company at any time at or prior to dated the Closing Time or applicable Settlement Date, and such termination shall be without liability of any party to any other party, except stating that the covenants representations and warranties set forth in Section 3(f) hereof, the provisions of Section 4 hereof, the indemnity herein are true and contribution agreement set forth in Sections 7 and 8 hereof, and the provisions of Sections 10 and 13 hereof shall remain in effectaccurate as if made on such Closing Date.
Appears in 1 contract
Sources: Dealer Manager Agreement
Conditions of Obligation. Your obligation to solicit offers to purchase the Securities act as Dealer Manager hereunder shall at all times be subject, in your capacity as agent of the Company and your obligation to purchase Securities as principal pursuant to any Terms Agreement or otherwise and the obligations of purchasers to purchase Securities pursuant to purchase offers solicited by you and accepted by the Company will be subject to the accuracy of the representations and warranties on the part of the Company hereindiscretion, to the accuracy of the statements of the Company’s officers made in any certificate furnished pursuant to the provisions hereof, to the performance and observance by the Company of all covenants and agreements herein contained on its part to be performed and observed (in the case of an Agent’s obligation to solicit offers to purchase Securities, at the time of such solicitation, and, in the case of an Agent’s or any other purchaser’s obligation to purchase Securities, at the time the Company accepts the offer to purchase such Securities and at the applicable Settlement Date) and (in each case) to the following additional conditions precedentthat:
(a) At All representations, warranties and other statements of the Closing Time Company contained herein are now, and at each Settlement Date with respect all times during the Exchange Offer will continue to any applicable Terms Agreement to which you are a partybe, if called for by such Terms Agreement, you true and correct.
(b) The Registration Statement shall have received:become effective on or prior to the Settlement Date.
(ic) The opinion or opinions Company at all times during the Exchange Offer shall have performed all of its obligations hereunder theretofore required to have been performed.
(including d) On each of the 10b-5 letter)Commencement Date and the Settlement Date, dated as of such time, of MC▇▇▇▇▇▇▇▇ & B▇▇▇▇▇▇ LLP, counsel to the Company, shall have furnished to you, as Dealer Manager, their opinion, dated the Commencement Date or the Settlement Date, as the case may be, in a form and substance satisfactory to you, substantially to the effect set forth in Exhibit C Exhibits A-1 and A-2 hereto, respectively.
(iie) The opinion or opinions, dated as of such time, On each of the Commencement Date and the Settlement Date, B▇▇▇▇▇▇ ▇▇▇▇, Esq., Associate General Counsel and Assistant Secretary of the Company, shall have furnished to you, as Dealer Manager, his opinion, dated the Commencement Date or the Settlement Date, as the case may be, in a form and substance satisfactory to you, substantially to the effect set forth in Exhibit D Exhibits B-1 and B-2 hereto, respectively.
(iiif) The opinion or opinions of your counselYou shall have received, relating to the validity on each of the Securities, the Indentures, this Agreement, such other matters as the Agent or Agents receiving such opinion may request Commencement Date and the Registration Statement, the General Disclosure Package (if applicable) and the Prospectus.
(b) At the Closing Time and at each Settlement Date with respect to any Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received a certificate of the Chairman, Vice Chairman, President or a Vice President of the Company, dated as of the Closing Time and, if called for by such Terms Agreement, dated as of the Settlement Date for such transaction, in each case, to the effect (i) that there has been no downgrading, nor any notice given of any potential or intended downgrading, or of a possible change that does not indicate the direction of the possible change, in the rating accorded any of the Company’s securities by any nationally recognized statistical rating organization since the date of the Terms Agreement (if such certificate is called for by such Terms Agreement), (ii) that the representations and warranties of the Company contained in Section 1 are true and correct with the same force and effect as though expressly made at and as of the date of such certificate, (iii) that the Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied pursuant to this Agreement at or prior to the date of such certificate and (iv) that, to the best of the Company’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that purpose have been initiated or threatened by the Commission.
(c) At the Closing Time, at the date of any Terms Agreement and on the applicable Settlement Date with respect to any such Terms Agreement to which you are a party, if called for by such Terms Agreement, you shall have received from Ernst & Young LLP (or another nationally recognized firm of independent public accountants)Date, a letter, letter dated as of the Closing Time Commencement Date or the date of the Terms Agreement, and a bring-down letter, dated as of such Settlement Date, as applicablethe case may be, in a form and substance satisfactory to you, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to certain financial information contained in or incorporated by reference into the General Disclosure Package and the Prospectus, and PricewaterhouseCoopers LLP confirming that they are an independent registered public accountants accounting firm with respect to the Company and its subsidiaries within the meaning of the 1933 Securities Act and the 1933 Act Regulations. All rules and regulations promulgated thereunder and the PCAOB and stating that in their opinion the financial statements and schedules examined by them and included in materials or incorporated by reference in the General Disclosure Package Registration Statement and the Prospectus shall be deemed comply in form in all material respects with the applicable accounting requirements of the Securities Act and the rules and regulations promulgated thereunder; and containing such other statements and information as is ordinarily included in accountants’ “comfort letters” with respect to the General Disclosure Package financial statements and certain financial and statistical information contained in the Registration Statement and the Prospectus for purposes of this subsectionProspectus.
(dg) At You shall have received on the Closing Time and at each Settlement Date, a certificate or certificates of an executive officer of the Company with specific knowledge of the Company’s financial affairs to the effect that, as of the Settlement Date with respect he represents as follows:
(i) The Registration Statement has become effective under the Securities Act and no stop order suspending the effectiveness of the Registration Statement or no order preventing or suspending the use of the Prospectus has been issued, and no proceedings for such purpose or pursuant to any Terms Agreement to which you are a party, if called for by such Terms Agreement, the counsel for the Agents shall have been furnished with such documents and opinions as they may reasonably require for the purpose of enabling them to pass upon the issuance and sale Section 8A of the Securities Act have been taken or are, to his or her knowledge, contemplated or threatened by the Commission;
(ii) The representations and warranties of the Company contained in Section 4 hereof are true and correct as herein contemplated of the Settlement Date;
(iii) There has not been any downgrading in the rating accorded the Company’s debt securities by M▇▇▇▇’▇ Investors Service, Inc. (“Moody’s”) or Standard & Poor’s Ratings Group (“S&P”), and related proceedingsneither Moody’s nor S&P has publicly announced that it has under surveillance or review, or in order to evidence the accuracy and completeness with possible negative implications, its rating of any of the representations and warranties, or the fulfillment of any of the conditions, herein containedCompany’s debt securities; and all proceedings taken by the Company in connection with the issuance and sale of the Securities as herein contemplated shall be satisfactory in a form and substance to the Agents and their counsel. Your obligation to solicit offers to purchase the Securities in your capacity as Agent for the Company, your obligation to purchase Securities as principal pursuant to any Terms Agreement or otherwise and the obligations of purchasers to purchase Securities pursuant to purchase offers solicited by you and accepted by the Company will be subject to the following further conditions: and
(iiv) there shall not have been, since Since the date of such Terms Agreement or since the respective dates as of which information is given in the Registration Statement, there has not been any change in the General Disclosure Package capital stock (other than issuances pursuant to equity incentive plans) or increase in long-term debt of the Company or any of the subsidiaries that is material to the Company and its subsidiaries taken as a whole, or any material adverse change, or any development that would reasonably be expected to result in a material adverse change, in or affecting the business, properties, financial position or results of operations of the Company and its subsidiaries, taken as a whole, except as set forth or contemplated in the Registration Statement and the Prospectus, any Material Adverse Effect, other than as set forth in .
(h) On each of the General Disclosure Package Commencement Date and the ProspectusSettlement Date, as amended or supplemented at the time of such solicitation or at Dealer Manager shall have received from Cravath, Swaine & M▇▇▇▇ LLP, counsel for the time such offer to purchase was made, and (ii) there shall not have occurred any outbreak or escalation of hostilities or any material change in financial markets or other calamity or crisis (including, without limitationDealer Manager, an act of terrorism) opinion or opinions dated the effect of which is such as to make it, in your judgment (or, in the case of a syndicated issue, in the judgment of the book-running lead manager(s)), impracticable or inadvisable to market the Securities or enforce contracts for the sale of the Securities, and (iii) trading in securities of the Company shall not have been suspended by the Commission or a national securities exchange, nor shall trading generally on either the Nasdaq Global Market Commencement Date or the New York Stock Exchange have been suspended, or minimum or maximum prices for trading of securities generally have been fixed, or maximum ranges for prices for securities (other than trading limits currently in effect and other similar trading limits) have been required, or trading otherwise materially limited, by either of said exchanges or by order of the Commission or any other governmental authority, nor shall a banking moratorium have been declared by either Federal or New York authorities nor shall a banking moratorium have been declared by the relevant authorities in the country or countries of origin of any foreign currency or currencies in which the Securities are denominated or payable, and (iv) there shall not have been a material disruption in commercial banking or securities settlement or clearance services in the United States, and (v) the rating assigned by any nationally recognized statistical rating organization to any debt securities of the Company as of the date of the applicable Terms Agreement or the date that the applicable purchase offer was presented to the CompanySettlement Date, as the case may be, with respect to such matters as the Dealer Manager may reasonably request.
(i) The Company shall not have furnished to you such further certificates and documents confirming the representations and warranties, covenants and conditions contained herein and related matters as you may reasonably have requested.
(j) The Common Stock shall have been downgraded from that date duly listed, subject to notice of issuance, on the applicable Settlement Date nor shall any notice have been given by any such nationally recognized statistical rating organization of any intended or potential downgrading or any review for possible change that does not indicate the direction of the possible change in such rating and (vi) the Prospectus, at the time it was required to be delivered to a purchaser of the Securities, shall not have contained an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances existing at such time, not misleading. If any condition specified in this Section 5 shall not have been fulfilled, any Terms Agreement to which you are a party and any agreement to purchase Securities from the Company pursuant to a purchase offer solicited by you as Agent may be terminated insofar as it applies to you (or, if terminated by the book-running lead manager of a syndicated issue, as it applies to all Agents party thereto) or to a prospective purchaser, in the case of a solicited purchase offer, by notice to the Company at any time at or prior to the Closing Time or applicable Settlement Date, and such termination shall be without liability of any party to any other party, except that the covenants set forth in Section 3(f) hereof, the provisions of Section 4 hereof, the indemnity and contribution agreement set forth in Sections 7 and 8 hereof, and the provisions of Sections 10 and 13 hereof shall remain in effectNew York Stock Exchange.
Appears in 1 contract
Sources: Dealer Manager Agreement (Goodyear Tire & Rubber Co /Oh/)