Conditions and Obligations. The obligation of the Dealer Manager to act as a Dealer Manager hereunder shall at all times be subject, in its discretion, to the conditions that: (a) All representations and warranties of the Company and each of the Guarantors contained herein or in any certificate or writing delivered hereunder at all times during the Exchange Offer shall be true and correct in all material respects. (b) Each of the Company and each Guarantor at all times during the Exchange Offer shall have performed, in all material respects, all of its obligations hereunder required as of such time to have been performed by it. (c) No stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with. (d) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations, of the Company and its subsidiaries, taken as a whole, from that set forth in the Exchange Offer Material (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement) that, in the Dealer Manager's judgment, is material and adverse and that makes it, in the Dealer Manager's judgment, impracticable to market the New Notes on the terms and in the manner contemplated in the Exchange Offer Material. (e) On or before the Closing Date, the Company shall have completed the refinancing of the Credit Agreement. (f) On the Closing Date, the Dealer Manager shall have received a letter, dated the date of delivery thereof, in form and substance satisfactory to the Dealer Manager, from Ernst & Young LLP containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement. (g) On the Closing Date, the Dealer Manager shall have received a certificate, dated the respective date of delivery thereof, signed by an executive officer of the Company, to the effect set forth in Section 6(c) above and further to the effect that the representations and warranties of the Company and each Guarantor set forth in Section 5 of this Agreement are true and correct as of the respective date of delivery thereof and that the Company and each Guarantor have complied with, or received waivers from the Dealer Manager with respect to, all of the agreements and satisfied all of the conditions contained herein on their part to be performed or satisfied hereunder on or before the Commencement Date and the Closing Date, as applicable. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to any proceedings threatened. (h) On the Closing Date, the Dealer Manager shall have received the favorable opinion of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.L.L., counsel for the Company and the Guarantors, dated as of the respective date of delivery thereof, substantially in the form of Exhibit A. The opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.L.L shall be rendered to the Dealer Manager at the request of the Company and shall so state therein. (i) On the Closing Date, the Dealer Manager shall have received the favorable opinion of McGuireWoods LLP, counsel for the Dealer Manager, dated as of the respective date of delivery thereof, with respect to the matters covered in paragraphs of 11, 12, 14 and the last paragraph of the form of opinion contained in Exhibit A as well as such other related matters as the Dealer Manager 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. (j) On the Closing Date, the Dealer Manager shall be satisfied with the terms and conditions of the New Indenture. (k) The Dealer Manager shall have received such other documents and certificates as are reasonably requested by the Dealer Manager or its counsel.
Appears in 1 contract
Conditions and Obligations. The obligation obligations of the Dealer Manager to act as a Dealer Manager hereunder shall at all times be subject, in its discretion, to the conditions that:
(a) All representations and warranties of the Company and each of the Guarantors contained herein or in any certificate or writing delivered hereunder at all times during the Exchange Offer shall be true and correct in all material respects.
(b) Each of the The Company and each Guarantor at all times during the Exchange Offer shall have performed, in all material respects, all of its obligations hereunder required as of such time to have been performed by it.
(c) No Counsel for the Company shall have delivered to the Dealer Manager an opinion, on the date of closing of the Offer, reasonably acceptable to the Dealer Manager, dated such date and covering substantially the following matters:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of California.
(a) The Company has duly taken all necessary corporate action to authorize the making and consummation of the Offer pursuant to the terms of the Documents and the execution, delivery and performance by the Company of this Agreement, and (b) this Agreement has been duly executed and delivered by the Company.
(iii) The New Debentures have been duly authorized by the Company and, when executed, authenticated, and issued in accordance with the provisions of the New Indenture and delivered and exchanged as contemplated by the Offer, will constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, general equitable principles and the discretion of the courts in granting equitable remedies; and the New Debentures will be entitled to the benefits of the New Indenture. The New Debentures will in all material respects be in the form contemplated by the New Indenture.
(iv) The New Indenture has been duly authorized, executed and delivered by the Company and, assuming that the Trustee has satisfied all legal requirements that are applicable to it to the extent necessary to make the New Indenture enforceable against it, the New Indenture constitutes a legal, valid and binding instrument of the Company, enforceable against the Company in accordance with its terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, general equitable principles and the discretion of the courts in granting equitable remedies; and the New Indenture has been duly qualified under the Trust Indenture Act.
(v) The New Debentures and the New Indenture conform in all material aspects to the description thereof in the Prospectus.
(vi) The statements in the Prospectus under the caption "Description of Debentures", "United States Federal Income Tax Consequences", and in the Registration Statement under Item 15, insofar as such statements constitute matters law, summaries of legal matters, the Company's Articles of Incorporation and Bylaws or legal proceedings, or legal conclusions, has been reviewed by us and is correct in all material respects.
(vii) The Registration Statement has become effective under the Securities Act and the Prospectus has been filed pursuant to Rule 424(b) under the Securities Act in the manner and within the time period required by Rule 424. To our knowledge, no stop order suspending the effectiveness of the Registration Statement or any part thereof shall have has been issued and no proceeding proceedings for that purpose shall have been initiated instituted or threatened by are pending under the Commission; and all requests for additional information on the part of the Commission shall have been complied withSecurities Act.
(dviii) Subsequent The Registration Statement, as of its effective date, and the Prospectus, as of its date and upon consummation of the transactions contemplated by the Offer, complied as to form in all material respects with the requirements of the Securities Act and the rules and regulations thereunder (in each case other than the financial statements and supporting schedules, and the Form T-1 included or incorporated by reference therein, as to which such counsel need express no opinion).
(ix) Assuming the due authorization, execution and delivery of this Agreement by the Dealer Manager, this Agreement constitutes the valid and prior legally binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the Closing Dateextent that such enforceability may be limited by applicable bankruptcy, there shall insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors' rights generally and by general equitable principles (whether considered in a proceeding in equity or at law), and except that rights to indemnification or contribution contained in this Agreement may be limited by federal or state securities laws or public policy relating thereto.
(x) The making and consummation of the Offer pursuant to the terms of the Documents and the execution, delivery and performance by the Company of this Agreement, the New Indenture, the Documents and the transactions related hereto and thereto (A) do not have occurred and will not conflict with, or result in a breach or violation of, or constitute a default under, the charter or bylaws (or similar organizational documents) of the Company or of any changematerial note, indenture (including without limitation the indenture governing the Old Debentures), loan agreement, mortgage or other agreement, instrument or undertaking of which counsel has knowledge of which the Company, any of its subsidiaries or affiliates is a party or by which any of them is bound or any of their respective subsidiaries or affiliates is a party or by which any of them is bound or to which any of their respective properties or assets is subject will not result in a violation of any corporate or foreign or federal law, rule or regulation applicable to, or any development involving a prospective changeorder known to such counsel of any court or of any other governmental agency or instrumentality having jurisdiction over the Company or any of its subsidiaries or affiliates or any of their respective properties or assets and will comply in all material respects with the requirements of all applicable federal securities laws, in the conditionrules and regulations.
(xi) Except for filings under state securities laws and consent of insurance regulators, financial or otherwiseno consent, approval, authorization, order of, or registration, qualification or filing with, any court or regulatory authority or governmental agency or instrumentality is or will be required in connection with the earnings, business or operations, making and consummation of the Company and its subsidiaries, taken as a whole, from that set forth in the Exchange Offer Material (exclusive of any amendments or supplements thereto subsequent pursuant to the date terms of the Documents or the execution, delivery and performance by the Company of this Agreement) thatAgreement and the transactions contemplated hereby. In giving the opinions required by this Section 5, such counsel shall additionally state that such counsel has participated in conferences and discussions with the Company, the Dealer Manager, the Dealer Manager's judgment, is material counsel and adverse and that makes it, others in the Dealer Manager's judgmentcourse of the preparation by the Company of the Offer, impracticable to market at which conferences the New Notes on contents of the terms Exchange Offer and other related documents were discussed, and, although such counsel has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the information included in the Registration Statement and in the manner contemplated Prospectus (except for the opinion rendered in item 5(c)(vi) above), no facts have come to such counsel's attention which lead such counsel to believe that the Exchange Offer Material.
(e) On Registration Statement or before the Closing DateProspectus 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 contained therein, the Company shall have completed the refinancing in light of the Credit Agreement.
circumstances under which they were made, not misleading (f) On the Closing Date, the Dealer Manager it being understood that such counsel shall have received a letter, dated the date of delivery thereof, in form and substance satisfactory to the Dealer Manager, from Ernst & Young LLP containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters express no view with respect to the financial statements and certain financial information the related schedules thereto, contained or incorporated by reference in the Registration Statement.
(g) On Statement and the Closing Date, the Dealer Manager shall have received a certificate, dated the respective date Prospectus). All or portions of delivery thereof, signed such opinion may be rendered by an executive officer of the Company, one or more internal or special counsel to the effect set forth in Section 6(c) above and further to the effect that the representations and warranties of the Company and each Guarantor set forth in Section 5 of this Agreement are true and correct as of the respective date of delivery thereof and that the Company and each Guarantor have complied with, or received waivers from the Dealer Manager with respect to, all of the agreements and satisfied all of the conditions contained herein on their part to be performed or satisfied hereunder on or before the Commencement Date and the Closing Date, as applicable. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to any proceedings threatened.
(h) On the Closing Date, the Dealer Manager shall have received the favorable opinion of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.L.L., counsel for the Company and the Guarantors, dated as of the respective date of delivery thereof, substantially in the form of Exhibit A. The opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.L.L shall be rendered reasonably acceptable to the Dealer Manager at the request of the Company and shall so state therein.
(i) On the Closing Date, the Dealer Manager shall have received the favorable opinion of McGuireWoods LLP, counsel for the Dealer Manager, dated as of the respective date of delivery thereof, with respect to the matters covered in paragraphs of 11, 12, 14 and the last paragraph of the form of opinion contained in Exhibit A as well as such other related matters as the Dealer Manager 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.
(j) On the Closing Date, the Dealer Manager shall be satisfied with the terms and conditions of the New Indenture.
(k) The Dealer Manager shall have received such other documents and certificates as are reasonably requested by the Dealer Manager or its counsel.
Appears in 1 contract
Sources: Letter Agreement (Cii Financial Inc)
Conditions and Obligations. The obligation obligations of the Dealer Manager to act as a Dealer Manager hereunder shall at all times be subject, in its discretion, to the conditions that:
(a) All representations and warranties of the Company and each of the Guarantors contained herein or in any certificate or writing delivered hereunder at all times during the Exchange Offer shall be true and correct in all material respects.
(b) Each of the The Company and each Guarantor at all times during the Exchange Offer shall have performed, in all material respects, all of its obligations hereunder required as of such time to have been performed by it.
(c) No stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding Counsel for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with.
(d) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations, of the Company and its subsidiaries, taken as a whole, from that set forth in the Exchange Offer Material (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement) that, in the Dealer Manager's judgment, is material and adverse and that makes it, in the Dealer Manager's judgment, impracticable to market the New Notes on the terms and in the manner contemplated in the Exchange Offer Material.
(e) On or before the Closing Date, the Company shall have completed the refinancing of the Credit Agreement.
(f) On the Closing Date, delivered to the Dealer Manager shall have received a letteran opinion, dated on the date of delivery thereofclosing of the Offer, in form and substance satisfactory reasonably acceptable to the Dealer Manager, from Ernst & Young LLP containing statements dated such date and information covering substantially the following matters:
(i) The Company is validly existing as a corporation in good standing under the laws of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in the Registration StatementDelaware.
(ga) On The Company has duly taken all necessary corporate action to authorize the Closing Datemaking and consummation of the Offer pursuant to the terms of the Documents and the execution, delivery and performance by the Dealer Manager shall Company of this Agreement, and (b) this Agreement has been duly executed and delivered by the Company.
(iii) The New Notes have received a certificatebeen duly authorized by the Company and, dated when executed, authenticated, and issued in accordance with the respective date provisions of delivery thereofthe New Indentures and delivered and exchanged as contemplated by the Offer, signed by an executive officer will constitute legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their terms, subject, as to enforcement of remedies, to bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors' rights generally, general equitable principles and the discretion of the courts in granting equitable remedies; and the New Notes will be entitled to the effect set forth in Section 6(c) above and further to the effect that the representations and warranties of the Company and each Guarantor set forth in Section 5 of this Agreement are true and correct as of the respective date of delivery thereof and that the Company and each Guarantor have complied with, or received waivers from the Dealer Manager with respect to, all of the agreements and satisfied all of the conditions contained herein on their part to be performed or satisfied hereunder on or before the Commencement Date and the Closing Date, as applicable. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to any proceedings threatened.
(h) On the Closing Date, the Dealer Manager shall have received the favorable opinion of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.L.L., counsel for the Company and the Guarantors, dated as of the respective date of delivery thereof, substantially in the form of Exhibit A. The opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.L.L shall be rendered to the Dealer Manager at the request of the Company and shall so state therein.
(i) On the Closing Date, the Dealer Manager shall have received the favorable opinion of McGuireWoods LLP, counsel for the Dealer Manager, dated as of the respective date of delivery thereof, with respect to the matters covered in paragraphs of 11, 12, 14 and the last paragraph of the form of opinion contained in Exhibit A as well as such other related matters as the Dealer Manager 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.
(j) On the Closing Date, the Dealer Manager shall be satisfied with the terms and conditions benefits of the New Indenture.
(k) Indentures. The Dealer Manager shall have received such other documents and certificates as are reasonably requested by the Dealer Manager or its counsel.New Notes will in all material
Appears in 1 contract
Sources: Dealer Manager Agreement (Dc 9 Aircraft Holdings Ii LLC)
Conditions and Obligations. The obligation of the Dealer Manager to act as a Dealer Manager hereunder shall at all times be subject, in its discretion, to the conditions that:
(a) All representations and warranties of the Company and each of the Guarantors contained herein Co-Issuer that are qualified as to materiality or Material Adverse Effect shall be true and correct in any certificate or writing delivered hereunder at all times during the Exchange Offer respects and those not so qualified shall be true and correct in all material respectsrespects as of the date hereof, as of each Mailing Date and as of each Closing Date, except to the extent any such representations and warranties expressly relate to an earlier date.
(b) Each of the Company and each Guarantor the Co-Issuer at all times during the Exchange Tender Offer shall have performed, in all material respects, all of its obligations hereunder required as of such time to have been performed by it.
(c) No stop order suspending Counsel for the effectiveness Company shall have delivered to the Dealer Manager an opinion, (i) prior to the commencement of the Registration Statement or any part thereof shall have been issued Tender Offer, covering the matters set forth in Exhibit A-1 hereto and no proceeding for that purpose shall have been initiated or threatened by (ii) on each Closing Date, covering the Commission; and all requests for additional information on the part of the Commission shall have been complied withmatters set forth in Exhibit A-2.
(d) Subsequent 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 execution and 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 or its legal counsel in good faith believes makes it inadvisable for the Dealer Manager to continue to render services pursuant hereto and prior 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) At each Closing Date, there shall not have occurred any changebeen delivered to the Dealer Manager, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations, on behalf of the Company Company, a certificate of the Chairman, Chief Executive Officer or President and its subsidiariesthe Chief Financial Officer of the Company, taken as a wholedated such Closing Date, from and stating that the representations and warranties set forth in the Exchange Offer Material (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement) that, in the Dealer Manager's judgment, is material Section 4 hereof are true and adverse and that makes it, in the Dealer Manager's judgment, impracticable to market the New Notes accurate as if made on the terms and in the manner contemplated in the Exchange Offer Material.
(e) On or before the such Closing Date, the Company shall have completed the refinancing of the Credit Agreement.
(f) On the Closing Date, The Company shall have advised the Dealer Manager shall have received a letterpromptly of (i) the occurrence of any event which would reasonably be expected to cause the Company to withdraw, dated rescind or terminate the date Tender Offer or would permit the Company to exercise any right not to purchase Notes tendered under the Tender Offer, (ii) the occurrence of delivery thereofany event, or the discovery of any fact, the occurrence or existence of which it believes would make it necessary or advisable to make any change in form and substance satisfactory the Tender Documents being used or would cause any representation or warranty contained in this Agreement that is qualified as to materiality or Material Adverse Effect to be untrue or inaccurate 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, (iii) any proposal by the Company or requirement to make, amend or supplement any Tender Document or any filing in connection with the Tender Offer pursuant to the Dealer ManagerExchange Act or any applicable law, from Ernst & Young LLP containing statements and information rule or regulation, (iv) its awareness of the type ordinarily included issuance by any regulatory authority of any comment or order or the taking of any other action concerning the Tender Offer (and, if in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement.
(g) On the Closing Datewriting, the Dealer Manager shall will have received a certificate, dated the respective date of delivery thereof, signed by an executive officer of the Company, to the effect set forth in Section 6(c) above and further to the effect that the representations and warranties of the Company and each Guarantor set forth in Section 5 of this Agreement are true and correct as of the respective date of delivery thereof and that the Company and each Guarantor have complied with, or received waivers from furnished the Dealer Manager with respect toa copy thereof), all (v) its awareness of any material developments in connection with the agreements and satisfied all of Tender Offer or the conditions contained herein on their part to be performed or satisfied hereunder on or before the Commencement Date and the Closing Datefinancing thereof, as applicable. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to any proceedings threatened.
(h) On the Closing Dateincluding, without limitation, the Dealer Manager shall have received the favorable opinion commencement of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.L.L., counsel for the Company and the Guarantors, dated as of the respective date of delivery thereof, substantially in the form of Exhibit A. The opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.L.L shall be rendered any lawsuit relating to the Dealer Manager at Tender Offer and (vi) any other information relating to the request of the Company and shall so state therein.
(i) On the Closing DateTender Offer, the Dealer Manager shall have received the favorable opinion of McGuireWoods LLP, counsel for the Dealer Manager, dated as of the respective date of delivery thereof, with respect to the matters covered in paragraphs of 11, 12, 14 and the last paragraph of the form of opinion contained in Exhibit A as well as such other related matters as Tender Documents or this Agreement which the Dealer Manager may from time to time 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.
(j) On the Closing Date, the Dealer Manager shall be satisfied with the terms and conditions of the New Indenture.
(k) The Dealer Manager shall have received such other documents and certificates as are reasonably requested by the Dealer Manager or its counsel.
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 a Dealer Manager Managers hereunder shall at all times be subject, in its their discretion, to the conditions 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 and each of the Guarantors Charter Companies contained herein or in any certificate or writing delivered hereunder at all times during the Exchange Offer shall be true and correct in all material respects.
(bc) Each of the Company and each Guarantor The Charter Companies at all times during the Exchange Offer shall have performed, in all material respects, all of its their obligations hereunder required as of such time to have been performed by it.
(c) No stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied withthem.
(d) Subsequent The General Counsel of the Charter Companies, shall have delivered to the execution and delivery of this Agreement and Dealer Managers an opinion, prior to the Closing Commencement Date and on the Exchange Date, there shall not have occurred any change, or any development involving a prospective change, substantially in the condition, financial or otherwise, or in the earnings, business or operations, form of the Company and its subsidiaries, taken as a whole, from that set forth in the Exchange Offer Material (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement) that, in the Dealer Manager's judgment, is material and adverse and that makes it, in the Dealer Manager's judgment, impracticable to market the New Notes on the terms and in the manner contemplated in the Exchange Offer MaterialExhibit C hereto.
(e) On or before Gibson, Dunn & Crutcher LLP, counsel for the Closing Charter Companies, sh▇▇▇ ▇▇ve ▇▇▇ive▇▇▇ ▇▇ ▇he Dealer Managers an opinion, prior to the Commencement Date and on the Exchange Date, substantially in the Company shall have completed the refinancing form of the Credit AgreementExhibit D hereto.
(f) On the Closing DateCole, the Dealer Manager shall have received a letterRaywid & Braverman, dated the date of delivery thereofL.L.P., in form and substance satisfactory special regulatory counsel to the Dealer Manager, from Ernst & Young LLP containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement.
(g) On the Closing Date, the Dealer Manager shall have received a certificate, dated the respective date of delivery thereof, signed by an executive officer of the Company, to the effect set forth in Section 6(c) above and further to the effect that the representations and warranties of the Company and each Guarantor set forth in Section 5 of this Agreement are true and correct as of the respective date of delivery thereof and that the Company and each Guarantor have complied with, or received waivers from the Dealer Manager with respect to, all of the agreements and satisfied all of the conditions contained herein on their part to be performed or satisfied hereunder on or before the Commencement Date and the Closing Date, as applicable. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to any proceedings threatened.
(h) On the Closing Date, the Dealer Manager shall have received the favorable opinion of th▇ ▇▇▇arter Compa▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.L.L.ll have delivered to the Dealer Managers an opinion, counsel for prior to the Company Commencement Date and on the Guarantors, dated as of the respective date of delivery thereofExchange Date, substantially in the form of Exhibit A. The opinion E hereto.
(g) 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 been commenced, or to the knowledge of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.L.L 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 Managers 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 be rendered 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.
(h) At the Exchange Date, there shall have been delivered to the Dealer Manager at the request Managers, on behalf of the Company Charter Companies, a certificate of the Chairman, Chief Executive Officer or President of Charter Holdings and shall so state thereinthe Chief Financial Officer of Charter Holdings, dated the 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 Exchange Date.
(i) On At the Closing Commencement Date and at the Exchange Date, the Dealer Manager Charter Companies shall have received the favorable opinion of McGuireWoods LLP, counsel for requested and caused KPMG LLP to furnish to the Dealer ManagerManagers, comfort letters, dated respectively as of the respective date Commencement Date and as of delivery thereofthe Exchange Date, with respect in form and substance reasonably satisfactory to the matters covered in paragraphs of 11, 12, 14 and the last paragraph of the form of opinion contained in Exhibit A as well as such other related matters as the Dealer Manager 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 mattersManagers.
(j) On The Charter Companies shall have advised the Closing DateDealer Managers promptly of (i) the occurrence of any event which, in the reasonable judgment of the Charter Companies or their counsel could cause the Charter Companies to withdraw, rescind or modify the Offering Documents, to withdraw, rescind or terminate the Exchange Offer or would permit the Charter Companies to exercise any right not to exchange cash and New Securities for the Outstanding Notes under the Exchange Offer, (ii) its awareness of the issuance by any regulatory authority of any comment or order or the taking of any other action concerning the Exchange Offer (and, if in writing, will have furnished the Dealer Managers with a copy thereof), (iii) its awareness of any material litigation or administrative or similar proceeding which is initiated or threatened in writing with respect to the Exchange Offer and (iv) any other information relating to the Exchange Offer, the Offering Documents or this Agreement which the Dealer Manager shall be satisfied with the terms and conditions of the New IndentureManagers may from time to time reasonably request.
(k) The Dealer Manager At the Exchange Date, the Charter Companies shall have received such 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 documents governmental agency or instrumentality required in connection with the making and certificates as are reasonably requested by consummation of the Dealer Manager or its counselExchange Offer and the execution, delivery and performance of this Agreement.
Appears in 1 contract
Conditions and Obligations. The obligation of the each Dealer Manager to act as a Dealer Manager hereunder shall at all times be subject, in its discretion, to the conditions that:
(a) All representations and warranties of the Company and each of the Guarantors contained herein Co- Issuer that are qualified as to materiality or Material Adverse Effect shall be true and correct in any certificate or writing delivered hereunder at all times during the Exchange Offer respects and those not so qualified shall be true and correct in all material respectsrespects as of the date hereof, as of each Mailing Date and as of the Closing Date, except to the extent any such representations and warranties expressly relate to an earlier date.
(b) Each of the Company and each Guarantor Co-Issuer at all times during the Exchange Tender Offer shall have performed, in all material respects, all of its obligations hereunder required as of such time to have been performed by it.
(c) No stop order suspending Counsel for the effectiveness Company shall have delivered to the Dealer Managers an opinion, prior to the commencement of the Registration Statement or any part thereof shall have been issued Tender Offer and no proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of Closing Date, covering the Commission shall have been complied withmatters set forth in Exhibit A hereto.
(d) Subsequent 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 execution and 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 Managers or their legal counsel in good faith believes makes it inadvisable for the Dealer Managers to continue to render services pursuant hereto and prior 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) At the Closing Date, there shall not have occurred any changebeen delivered to the Dealer Managers, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations, on behalf of the Company Company, a certificate of the Chairman, Chief Executive Officer or President and its subsidiariesthe Chief Financial Officer of the Company, taken as a whole, from that set forth in the Exchange Offer Material (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement) that, in the Dealer Manager's judgment, is material and adverse and that makes it, in the Dealer Manager's judgment, impracticable to market the New Notes on the terms and in the manner contemplated in the Exchange Offer Material.
(e) On or before dated the Closing Date, and stating that the Company shall have completed the refinancing of the Credit Agreementrepresentations and warranties set forth in Section 4 hereof are true and accurate as if made on such Closing Date.
(f) On the Closing Date, The Company shall have advised the Dealer Manager shall have received a letter, dated the date Managers promptly of delivery thereof, in form and substance satisfactory to the Dealer Manager, from Ernst & Young LLP containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement.
(g) On the Closing Date, the Dealer Manager shall have received a certificate, dated the respective date of delivery thereof, signed by an executive officer of the Company, to the effect set forth in Section 6(c) above and further to the effect that the representations and warranties of the Company and each Guarantor set forth in Section 5 of this Agreement are true and correct as of the respective date of delivery thereof and that the Company and each Guarantor have complied with, or received waivers from the Dealer Manager with respect to, all of the agreements and satisfied all of the conditions contained herein on their part to be performed or satisfied hereunder on or before the Commencement Date and the Closing Date, as applicable. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to any proceedings threatened.
(h) On the Closing Date, the Dealer Manager shall have received the favorable opinion of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.L.L., counsel for the Company and the Guarantors, dated as of the respective date of delivery thereof, substantially in the form of Exhibit A. The opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.L.L shall be rendered to the Dealer Manager at the request of the Company and shall so state therein.
(i) On the Closing Dateoccurrence of any event which would reasonably be expected to cause the Company to withdraw, rescind or terminate the Tender Offer or would 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 Dealer Manager shall occurrence or existence of which it believes would make it necessary or advisable to make any change in the Tender Documents being used or would cause any representation or warranty contained in this Agreement that is qualified as to materiality or Material Adverse Effect to be untrue or inaccurate 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, (iii) any proposal by the Company or requirement to make, amend or supplement any Tender Document or any filing in connection with the Tender Offer pursuant to the Exchange Act or any applicable law, rule or regulation, (iv) its awareness of the issuance by any regulatory authority of any comment or order or the taking of any other action concerning the Tender Offer (and, if in writing, will have received the favorable opinion of McGuireWoods LLP, counsel for furnished the Dealer ManagerManagers with a copy thereof), dated as (v) its awareness of any material developments in connection with the respective date of delivery Tender Offer or the financing thereof, with respect including, without limitation, the commencement of any lawsuit relating to the matters covered in paragraphs of 11Tender Offer and (vi) any other information relating to the Tender Offer, 12, 14 and the last paragraph of the form of opinion contained in Exhibit A as well as such other related matters as Tender Documents or this Agreement which the Dealer Manager Managers may from time to time 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.
(j) On the Closing Date, the Dealer Manager shall be satisfied with the terms and conditions of the New Indenture.
(k) The Dealer Manager shall have received such other documents and certificates as are reasonably requested by the Dealer Manager or its counsel.
Appears in 1 contract
Sources: Dealer Manager Agreement (Suburban Propane Partners Lp)
Conditions and Obligations. The obligation of each of the Dealer Manager Managers to act as a Dealer Manager hereunder shall at all times be subject, in its discretion, to the conditions that:
(a) All representations and warranties of the Company and each of the Guarantors contained herein or in any certificate or writing delivered hereunder at all times during the Exchange Tender Offer and Consent Solicitation shall be true and correct in all material respectscorrect.
(b) Each of the The Company and each Guarantor at all times during the Exchange Tender Offer and Consent Solicitation shall have performed, in all material respects, all of its obligations hereunder required as of such time to have been performed by it.
(c) No stop order suspending Counsel for the effectiveness of the Registration Statement or any part thereof Company shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with.
(d) Subsequent delivered to the execution and delivery of this Agreement and prior to Dealer Managers an opinion, on the Closing Date, there shall covering the following matters:
(i) The Company has been duly incorporated and is validly existing as a corporation and in good standing under the laws of the State of Nevada; has all requisite corporate power and authority to conduct its business as described in the Tender and Solicitation Documents and is duly qualified to do business in each jurisdiction in which it owns or leases real property or in which the conduct of its business requires such qualification, except where the failure to be so qualified, whether individually or in the aggregate, would not have occurred any change, or any development involving a prospective change, in material adverse effect on the condition, financial or otherwise, or in the earnings, business or operations, operations of the Company and its subsidiaries, taken as a whole. The Company has all necessary corporate power and authority to execute and deliver this Agreement and perform its obligations hereunder and to consummate the Tender Offer and Consent Solicitation in accordance with their respective terms.
(ii) The Company has duly taken all necessary corporate action to authorize the making and consummation of the Tender Offer (including the purchase of Notes pursuant thereto) and the execution, from that set forth in delivery and performance by the Exchange Offer Material (exclusive of any amendments or supplements thereto subsequent to the date Company of this Agreement.
(iii) thatThis Agreement has been duly executed and delivered by the Company, and assuming the due authorization, execution and delivery of this Agreement by the Dealer Managers, this Agreement constitutes a legal, valid and binding obligation of the Company, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’ rights and remedies generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution thereunder may be limited by federal or state securities laws or public policy relating thereto.
(iv) The making and consummation of the Tender Offer and the execution, delivery and performance by the Company of this Agreement (A) do not and will not conflict with, or result in a breach or violation of, or constitute a default under, any of the provisions of (I) the Indenture, (II) the charter or bylaws (or similar organizational documents) of the Company and its subsidiaries, or (III) to the best of such counsel’s knowledge, any other material agreement, instrument or undertaking of the Company, and (B) to the best of such counsel’s knowledge (based on its review of those laws and regulations which in its experience are normally applicable to transactions of the type contemplated by the Tender Offer and Consent Solicitation) do not and will not result in a violation of any New York, Nevada corporate or United States federal law or regulation (the “Laws”) that is applicable to the Company or any of its subsidiaries or to the transactions contemplated hereby, or result in a violation of any order known to such counsel of any court or of any other governmental agency or instrumentality having jurisdiction over the Company or any of its subsidiaries or any of the properties or assets of the Company or any of its subsidiaries.
(v) To the best of such counsel’s knowledge, no consent, approval, authorization, order of, or registration, qualification or filing with, any court or regulatory authority or governmental agency or instrumentality is or will be required of the Company under the Laws in connection with the making and consummation of the Tender Offer and Consent Solicitation or the execution and delivery of this Agreement or performance by the Company of the transactions contemplated by this Agreement.
(vi) The consummation of the Tender Offer, in the Dealer Manager's judgment, is material and adverse and that makes it, manner described in the Tender and Solicitation Documents, will not require registration under the Securities Act and will comply in all material respects with the Exchange Act. In giving the opinions required by this Section 5, such counsel shall additionally state that such counsel has participated in conferences and discussions with the Company, the Company’s accountants and other advisors, the Dealer Manager's judgmentManagers, impracticable to market the New Notes on the terms Dealer Managers’ counsel (as applicable) and others in the manner contemplated course of the preparation by the Company of the Tender and Solicitation Documents, at which conferences the contents of the Tender and Solicitation Documents and the related other documents were discussed, and, although such counsel has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the information included in the Exchange Offer Material.
(e) On or before Tender and Solicitation Documents, including the Incorporated Documents, and the other related documents, no facts have come to such counsel’s attention which lead such counsel to believe that the Tender and Solicitation Documents as of their respective date and the Closing Date, and the Company shall have completed Incorporated Documents as of their respective filing date and the refinancing Closing Date contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the Credit Agreement.
circumstances under which they were made, not misleading (f) On the Closing Date, the Dealer Manager it being understood that such counsel shall have received a letter, dated the date of delivery thereof, in form and substance satisfactory to the Dealer Manager, from Ernst & Young LLP containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters express no view with respect to the financial statements and certain financial information the notes and schedules thereto contained or incorporated by reference in the Registration StatementTender and Solicitation Documents or the Incorporated Documents).
(gd) On 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 and Consent Solicitation, (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 and Solicitation 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 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) At the Closing Date, there shall have been delivered to the Dealer Manager shall have received a certificateManagers, dated the respective date of delivery thereof, signed by an executive officer on behalf of the Company, to a certificate of the effect set forth in Section 6(c) above Chairman, Chief Executive Officer or President and further to the effect Chief Financial Officer of the Company, dated the Closing Date, and stating that the representations and warranties of the Company and each Guarantor set forth in Section 5 of this Agreement 4 hereof are true and correct accurate as of the respective date of delivery thereof and that the Company and each Guarantor have complied with, or received waivers from the Dealer Manager with respect to, all of the agreements and satisfied all of the conditions contained herein if made on their part to be performed or satisfied hereunder on or before the Commencement Date and the such Closing Date, as applicable. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to any proceedings threatened.
(hf) On the Closing Date, The Company shall have advised the Dealer Manager shall have received the favorable opinion Managers promptly of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.L.L., counsel for the Company and the Guarantors, dated as of the respective date of delivery thereof, substantially in the form of Exhibit A. The opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.L.L shall be rendered to the Dealer Manager at the request of the Company and shall so state therein.
(i) On the Closing Dateoccurrence of any event which could cause the Company to withdraw, rescind or terminate the Tender Offer or would 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 Dealer Manager shall occurrence or existence of which it believes would make it necessary or advisable to make any change in the Tender and Solicitation Documents being used or would cause any representation or warranty contained in this Agreement to be untrue or inaccurate in any material respect, (iii) any proposal by the Company or requirement to make, amend or supplement any Tender and Solicitation Document or any filing in connection with the Tender Offer pursuant to the Exchange Act or any applicable law, rule or regulation, (iv) its awareness of the issuance by any regulatory authority of any comment or order or the taking of any other action concerning the Tender Offer (and, if in writing, will have received the favorable opinion of McGuireWoods LLP, counsel for furnished the Dealer ManagerManagers with a copy thereof), dated as (v) its awareness of any material developments in connection with the respective date of delivery Tender Offer or the financing thereof, with respect including, without limitation, the commencement of any lawsuit relating to the matters covered in paragraphs of 11Tender Offer and Consent Solicitation and (vi) any other information relating to the Tender Offer and Consent Solicitation, 12, 14 the Tender and the last paragraph of the form of opinion contained in Exhibit A as well as such other related matters as Solicitation Documents or this Agreement which the Dealer Manager Managers may from time to time 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.
(j) On the Closing Date, the Dealer Manager shall be satisfied with the terms and conditions of the New Indenture.
(k) The Dealer Manager shall have received such other documents and certificates as are reasonably requested by the Dealer Manager or its counsel.
Appears in 1 contract
Conditions and Obligations. The obligation of the Dealer Manager to act as a Dealer Manager hereunder shall at all times be subject, in its discretion, to the conditions that:
(a) All representations and warranties of the Company and each of the Guarantors contained herein Co-Issuer that are qualified as to materiality or Material Adverse Effect shall be true and correct in any certificate or writing delivered hereunder at all times during the Exchange Offer respects and those not so qualified shall be true and correct in all material respectsrespects as of the date hereof, as of each Mailing Date and as of the Closing Date, except to the extent any such representations and warranties expressly relate to an earlier date.
(b) Each of the Company and each Guarantor Co-Issuer at all times during the Exchange Tender Offer shall have performed, in all material respects, all of its obligations hereunder required as of such time to have been performed by it.
(c) No stop order suspending Counsel for the effectiveness Company shall have delivered to the Dealer Manager an opinion, (i) prior to the commencement of the Registration Statement or any part thereof shall have been issued Tender Offer, covering the matters set forth in Exhibit A hereto and no proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information (ii) on the part of Closing Date, covering the Commission shall have been complied withmatters set forth in Exhibit A-2.
(d) Subsequent 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 execution and 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 or its legal counsel in good faith believes makes it inadvisable for the Dealer Manager to continue to render services pursuant hereto and prior 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) At the Closing Date, there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations, of the Company and its subsidiaries, taken as a whole, from that set forth in the Exchange Offer Material (exclusive of any amendments or supplements thereto subsequent been delivered to the date of this Agreement) that, in the Dealer Manager's judgment, is material on behalf of the Company, a certificate of the Chairman, Chief Executive Officer or President and adverse and that makes itthe Chief Financial Officer of the Company, in the Dealer Manager's judgment, impracticable to market the New Notes on the terms and in the manner contemplated in the Exchange Offer Material.
(e) On or before dated the Closing Date, and stating that the Company shall have completed the refinancing of the Credit Agreementrepresentations and warranties set forth in Section 4 hereof are true and accurate as if made on such Closing Date.
(f) On the Closing Date, The Company shall have advised the Dealer Manager shall have received a letterpromptly of (i) the occurrence of any event which would reasonably be expected to cause the Company to withdraw, dated rescind or terminate the date Tender Offer or would permit the Company to exercise any right not to purchase Notes tendered under the Tender Offer, (ii) the occurrence of delivery thereofany event, or the discovery of any fact, the occurrence or existence of which it believes would make it necessary or advisable to make any change in form and substance satisfactory the Tender Documents being used or would cause any representation or warranty contained in this Agreement that is qualified as to materiality or Material Adverse Effect to be untrue or inaccurate 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, (iii) any proposal by the Company or requirement to make, amend or supplement any Tender Document or any filing in connection with the Tender Offer pursuant to the Dealer ManagerExchange Act or any applicable law, from Ernst & Young LLP containing statements and information rule or regulation, (iv) its awareness of the type ordinarily included issuance by any regulatory authority of any comment or order or the taking of any other action concerning the Tender Offer (and, if in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement.
(g) On the Closing Datewriting, the Dealer Manager shall will have received a certificate, dated the respective date of delivery thereof, signed by an executive officer of the Company, to the effect set forth in Section 6(c) above and further to the effect that the representations and warranties of the Company and each Guarantor set forth in Section 5 of this Agreement are true and correct as of the respective date of delivery thereof and that the Company and each Guarantor have complied with, or received waivers from furnished the Dealer Manager with respect toa copy thereof), all (v) its awareness of any material developments in connection with the agreements and satisfied all of Tender Offer or the conditions contained herein on their part to be performed or satisfied hereunder on or before the Commencement Date and the Closing Datefinancing thereof, as applicable. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to any proceedings threatened.
(h) On the Closing Dateincluding, without limitation, the Dealer Manager shall have received the favorable opinion commencement of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.L.L., counsel for the Company and the Guarantors, dated as of the respective date of delivery thereof, substantially in the form of Exhibit A. The opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.L.L shall be rendered any lawsuit relating to the Dealer Manager at Tender Offer and (vi) any other information relating to the request of the Company and shall so state therein.
(i) On the Closing DateTender Offer, the Dealer Manager shall have received the favorable opinion of McGuireWoods LLP, counsel for the Dealer Manager, dated as of the respective date of delivery thereof, with respect to the matters covered in paragraphs of 11, 12, 14 and the last paragraph of the form of opinion contained in Exhibit A as well as such other related matters as Tender Documents or this Agreement which the Dealer Manager may from time to time 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.
(j) On the Closing Date, the Dealer Manager shall be satisfied with the terms and conditions of the New Indenture.
(k) The Dealer Manager shall have received such other documents and certificates as are reasonably requested by the Dealer Manager or its counsel.
Appears in 1 contract
Sources: Dealer Manager and Solicitation Agent Agreement (Suburban Propane Partners Lp)
Conditions and Obligations. The obligation of Company agrees that it shall not consummate the Exchange Offer unless the following conditions are satisfied or otherwise waived by the Dealer Manager to act as a Dealer Manager hereunder shall at all times be subject, in its discretion, to the conditions thatManager:
(a) All representations and warranties of the Company and each of the Guarantors contained herein or in any certificate or writing delivered hereunder at all times during the Exchange Offer shall be true and correct in all material respects, except for those conditioned as to materiality, which shall be true and correct in all respects.
(b) Each of the The Company and each Guarantor at all times during the Exchange Offer shall have performed, in all material respects, all of its obligations hereunder required as of such time to have been performed by it.
(c) No stop order suspending the effectiveness of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with.
(d) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date, there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations, of the Company and its subsidiaries, taken as a whole, from that set forth in the Exchange Offer Material Offering Documents (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement) that, in the Dealer Manager's ’s judgment, is material and adverse and that makes it, in the Dealer Manager's ’s judgment, impracticable to market the New Notes on the terms and in the manner contemplated in the Exchange Offer MaterialOffering Documents.
(e) On or before the Closing Date, the Company shall have completed the refinancing of the Credit Agreement.
(f) On the Closing Date, the Dealer Manager shall have received a letter, dated the date of delivery thereof, in form and substance satisfactory to the Dealer Manager, from Ernst & Young LLP containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement.
(gd) On the Closing Date, the Dealer Manager shall have received a certificate, dated as of the respective date of delivery thereofClosing Date, signed by an executive officer of the Company, to the effect set forth in Section 6(c) above and further to the effect that the representations and warranties of the Company and each Guarantor set forth in Section 5 of this Agreement are true and correct as of the respective date of delivery thereof Closing Date and that the Company and each Guarantor have has complied with, or received waivers from the Dealer Manager with respect to, all of the agreements and satisfied all of the conditions contained herein on their its part to be performed or satisfied hereunder on or before the Commencement Date and the Closing Date, as applicable. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to any proceedings threatened.
(hi) The Dealer Manager shall have received on or prior to the Commencement Date a letter, dated as of the Commencement Date, in form and substance satisfactory to the Dealer Manager, from Deloitte & Touche LLP and PricewaterhouseCoopers LLP, as the case may be, confirming that they are independent public accountants within the meaning of Regulation S-X under the Securities Act and the Exchange Act, (ii) the Dealer Manager shall also have received on or prior to the Commencement Date a letter, dated as of the Commencement Date, in form and substance satisfactory to the Dealer Manager, from Deloitte & Touche LLP and PricewaterhouseCoopers LLP, as the case may be, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Offering Documents; and (ii) the Dealer Manager shall also have received on or prior to the Closing Date a letter, dated as of the Closing Date, in form and substance satisfactory to Dealer Manager, from Deloitte & Touche LLP and PricewaterhouseCoopers LLP, as the case may be, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Offering Documents; provided that the letter delivered on the Closing Date shall use a “cut-off date” not earlier than one day prior to the Closing Date.
(f) On the Closing Date, Date the Dealer Manager shall have received the favorable opinion of (i) ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.L.L.LLP, counsel for the Company and the GuarantorsCompany, dated as of the respective date of delivery thereofClosing Date, substantially in the form of Exhibit A. A and (ii) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq., Senior Vice President and General Counsel of the Company, dated as of the Closing Date, substantially in the form of Exhibit B, both of which shall be subject to customary limitations and qualifications. The opinion opinions of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ & ▇▇▇▇▇▇ P.L.L and ▇▇▇▇▇▇▇▇▇, LLP and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq. shall be rendered to the Dealer Manager at the request of the Company and shall so state therein.
(ig) On No stop order, restraining order or injunction has been issued by the Closing DateCommission or any court, the Dealer Manager and no litigation shall have received been commenced or threatened before the favorable opinion of McGuireWoods LLP, counsel for the Dealer Manager, dated as of the respective date of delivery thereofCommission or any court, with respect to (i) the matters covered in paragraphs of 11, 12, 14 and the last paragraph making or consummation of the form Exchange Offer, (ii) the execution, delivery or performance by the Company of opinion contained this Agreement, the New Indenture, or the New Notes or (iii) any of the transactions in Exhibit A as well as such other related matters as connection with, or contemplated by, the Exchange Offer Material which the Dealer Manager may reasonably requestor its counsel in good faith believes makes it inadvisable for the Dealer Manager to continue to render services pursuant hereto, and such counsel it shall not have received such papers and information 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 they the case may reasonably request to enable them to pass upon such mattersbe.
(j) On the Closing Date, the Dealer Manager shall be satisfied with the terms and conditions of the New Indenture.
(kh) The Dealer Manager shall have received such other documents and certificates as are reasonably requested by the Dealer Manager or its counsel.
Appears in 1 contract
Sources: Exchange Offer Dealer Manager Agreement (Pma Capital Corp)
Conditions and Obligations. The obligation of the Dealer Manager to act as a Dealer Manager hereunder shall at all times be subject, in its discretion, to the conditions that:
(a) All representations and warranties of the Company and each of the Guarantors contained herein or in any certificate or writing delivered hereunder at all times during the Exchange Offer shall be true and correct in all material respectscorrect.
(b) Each of the The Company and each Guarantor at all times during the Exchange Offer shall have performed, in all material respects, all of its obligations hereunder required as of such time to have been performed by it.
(c) No stop order suspending Counsel for the effectiveness Company shall have delivered to the Dealer Manager an opinion, on the Closing Date, covering the following matters:
(i) The Company has been duly incorporated and is validly existing as a corporation and in good standing under the laws of the Registration Statement or any part thereof shall have been issued State of Delaware and no proceeding for that purpose shall have been initiated or threatened by has all requisite corporate power and authority to conduct its business as described in the Commission; Exchange Offer Documents. The Company has all necessary corporate power and all requests for additional information on authority to execute and deliver this Agreement and perform its obligations hereunder and to consummate the part of the Commission shall have been complied withExchange Offer in accordance with their respective terms.
(dii) Subsequent The Company has duly taken all necessary corporate action to authorize the making and consummation of the Exchange Offer (including the exchange of Net Perceptions Shares pursuant thereto) and the execution, delivery and performance by the Company of this Agreement.
(iii) This Agreement has been duly executed and delivered by the Company, and assuming the due authorization, execution and delivery of this Agreement by the Dealer Manager, this Agreement constitutes a legal, valid and binding obligation of the Company, enforceable in accordance with its terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors' rights and remedies generally, and subject, as to enforceability, to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity) and except that rights to indemnification and contribution thereunder may be limited by federal or state securities laws or public policy relating thereto.
(iv) The making and consummation of the Exchange Offer and the execution, delivery and performance by the Company of this Agreement (A) do not and will not conflict with, or result in a breach or violation of, or constitute a default under, any of the provisions of (I) the charter or bylaws (or similar organizational documents) of the Company and its subsidiaries, or (II) to the best of such counsel's knowledge, any other material agreement, instrument or undertaking of the Company, and (B) to the best of such counsel's knowledge (based on its review of those laws and regulations which in its experience are normally applicable to transactions of the type contemplated by the Exchange Offer ) do not and will not result in a violation of any Delaware corporate or United States federal law or regulation (the "Laws") that is applicable to the Company or any of its subsidiaries or to the transactions contemplated hereby, or result in a violation of any order known to such counsel of any court or of any other governmental agency or instrumentality having jurisdiction over the Company or any of its subsidiaries or any of the properties or assets of the Company or any of its subsidiaries.
(v) To the best of such counsel's knowledge, no consent, approval, authorization, order of, or registration, qualification or filing with, any court or regulatory authority or governmental agency or instrumentality is or will be required of the Company under the Laws in connection with the making and consummation of the Exchange Offer or the execution and delivery of this Agreement or performance by the Company of the transactions contemplated by this Agreement.
(vi) The consummation of the Exchange Offer, in the manner described in the Exchange Offer Documents, will not require registration under the Securities Act and prior will comply in all material respects with the Exchange Act. In giving the opinions required by this Section 5, such counsel shall additionally state that such counsel has participated in conferences and discussions with the Company, the Company's accountants and other advisors, the Dealer Manager, the Dealer Manager's counsel (as applicable) and others in the course of the preparation by the Company of the Exchange Offer Documents, at which conferences the contents of the Exchange Offer Documents and the related other documents were discussed, and, although such counsel has not independently verified and is not passing upon and assumes no responsibility for the accuracy, completeness or fairness of the information included in the Exchange Offer Documents, including the Incorporated Documents, and the other related documents, no facts have come to such counsel's attention which lead such counsel to believe that the Exchange Offer Documents as of their respective date and the Closing Date, there shall not have occurred and the Incorporated Documents as of their respective filing date and the Closing Date contain any change, untrue statement of a material fact or any development involving omit to state a prospective changematerial fact necessary in order to make the statements therein, in the condition, financial or otherwise, or in the earnings, business or operations, light of the Company and its subsidiariescircumstances under which they were made, taken as a whole, from not misleading (it being understood that set forth in the Exchange Offer Material (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement) that, in the Dealer Manager's judgment, is material and adverse and that makes it, in the Dealer Manager's judgment, impracticable to market the New Notes on the terms and in the manner contemplated in the Exchange Offer Material.
(e) On or before the Closing Date, the Company such counsel shall have completed the refinancing of the Credit Agreement.
(f) On the Closing Date, the Dealer Manager shall have received a letter, dated the date of delivery thereof, in form and substance satisfactory to the Dealer Manager, from Ernst & Young LLP containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters express no view with respect to the financial statements and certain financial information the notes and schedules thereto contained or incorporated by reference in the Registration StatementExchange Offer Documents or the Incorporated Documents).
(gd) On 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 Exchange 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 Exchange Offer Documents which the Dealer Manager or its legal counsel in good faith believes 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 or local, for the Dealer Manager so to act, or continue so to act, as the case may be.
(e) At the Closing Date, there shall have been delivered to the Dealer Manager shall have received a certificateManager, dated the respective date of delivery thereof, signed by an executive officer on behalf of the Company, to a certificate of the effect set forth in Section 6(c) above Chairman and further to Chief Executive Officer or President and the effect Chief Financial Officer of the Company, dated the Closing Date, and stating that the representations and warranties of the Company and each Guarantor set forth in Section 5 of this Agreement 4 hereof are true and correct accurate as if made on such Closing Date.
(f) 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 Exchange Offer or would permit the Company to exercise any right not to accept for exchange any Net Perceptions Shares tendered under the Exchange Offer, (ii) the occurrence of any event, or the discovery of any fact, the occurrence or existence of which it believes would make it necessary or advisable to make any change in the Exchange Offer Documents being used or would cause any representation or warranty contained in this Agreement to be untrue or inaccurate in any material respect, (iii) any proposal by the Company or requirement to make, amend or supplement any Exchange Offer Document or any filing in connection with the Exchange Offer pursuant to the Exchange Act or any applicable law, rule or regulation, (iv) its awareness of the respective date issuance by any regulatory authority of delivery thereof and that any comment or order or the Company and each Guarantor taking of any other action concerning the Exchange Offer (and, if in writing, will have complied with, or received waivers from furnished the Dealer Manager with respect toa copy thereof), all (v) its awareness of any material developments in connection with the agreements and satisfied all of Exchange Offer or the conditions contained herein on their part to be performed or satisfied hereunder on or before the Commencement Date and the Closing Datefinancing thereof, as applicable. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to any proceedings threatened.
(h) On the Closing Dateincluding, without limitation, the Dealer Manager shall have received the favorable opinion commencement of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.L.L., counsel for the Company and the Guarantors, dated as of the respective date of delivery thereof, substantially in the form of Exhibit A. The opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.L.L shall be rendered any lawsuit relating to the Dealer Manager at Exchange Offer and (vi) any other information relating to the request of the Company and shall so state therein.
(i) On the Closing DateExchange Offer, the Dealer Manager shall have received the favorable opinion of McGuireWoods LLP, counsel for the Dealer Manager, dated as of the respective date of delivery thereof, with respect to the matters covered in paragraphs of 11, 12, 14 and the last paragraph of the form of opinion contained in Exhibit A as well as such other related matters as Exchange Offer Documents or this Agreement which the Dealer Manager may from time to time 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.
(j) On the Closing Date, the Dealer Manager shall be satisfied with the terms and conditions of the New Indenture.
(k) The Dealer Manager shall have received such other documents and certificates as are reasonably requested by the Dealer Manager or its counsel.
Appears in 1 contract
Sources: Dealer Manager Agreement (Obsidian Enterprises Inc)
Conditions and Obligations. The obligation of the Solicitation Agent and Dealer Manager to act as a Dealer Manager solicitation agent and/or dealer manager hereunder shall at all times be subject, in its discretion, to the conditions thatfollowing conditions:
(a) All representations and warranties of the Company and each of the Guarantors contained herein or in any certificate or writing delivered hereunder at all times during the Exchange Offer shall be true and correct in all material respectscorrect. The Company acknowledges that Credit Suisse’s agreement to act, or to continue to act, as Solicitation Agent and 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) Each of the The Company and each Guarantor shall have performed, at all times during the Exchange Offer shall have performedOffer, in all material respects, all of its obligations hereunder required as of such time to have been performed by it.
(c) No stop order suspending The Company will furnish to the effectiveness Solicitation Agent and Dealer Manager on the date hereof and on the Initial Settlement Date, (i) an opinion of McAfee & ▇▇▇▇, P.C., counsel to the Company, addressed to the Solicitation Agent and Dealer Manager, in the form attached hereto as Annex B-1, and (ii) an opinion of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part General Counsel of the Commission shall have been complied with.Company, addressed to the Solicitation Agent and Dealer Manager, in the form attached hereto as Annex B-2
(d) Subsequent to On the execution and delivery of this Agreement and prior to the Closing Initial Settlement Date, there shall not have occurred any changebeen delivered to the Solicitation Agent and Dealer Manager, on behalf of the Company, a certificate of the Chief Executive Officer or any development involving a prospective change, in Vice President and the condition, financial Chief Financial Officer or otherwise, or in the earnings, business or operations, Vice President and Treasurer of the Company Company, dated as of such date, and its subsidiaries, taken as a whole, from stating that the representations and warranties set forth in the Exchange Offer Material (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement) that, in the Dealer Manager's judgment, is material Section 4 hereof are true and adverse and that makes it, in the Dealer Manager's judgment, impracticable to market the New Notes accurate as if made on the terms and in the manner contemplated in the Exchange Offer Materialsuch date.
(e) On 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 Closing DateCommission, any other governmental or regulatory authority, agency or any court, with respect to the Company Transactions which the Solicitation Agent and Dealer Manager or its legal counsel in good faith believe makes it inadvisable for the Solicitation Agent and Dealer Manager to continue to render services pursuant hereto, and it shall not have completed otherwise become unlawful under any law or regulation, federal, state, local or foreign, for the refinancing of Solicitation Agent and Dealer Manager to so act, or continue so to so act, as the Credit Agreementcase may be.
(f) On The Company shall have advised the Closing DateSolicitation Agent and Dealer Manager promptly of (i) the occurrence of any event which could cause the Company to withdraw, rescind or terminate the Offer, (ii) the occurrence of any event, or the discovery of any fact, the Dealer Manager shall have received a letteroccurrence or existence of which it believes would require the making of any material change in the Offer Documents being used or would cause any representation or warranty contained in this Agreement to be untrue or inaccurate in any material respect, dated (iii) any proposal by the date of delivery thereofCompany or requirement to make, amend or supplement any Offer Documents (including the documents incorporated by reference therein) or any filing in form and substance satisfactory connection with the Offer pursuant to the Dealer ManagerExchange Act or any other applicable law, from Ernst & Young LLP containing statements and information rule or regulation, (iv) its awareness of the type ordinarily included 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, if in accountants' "comfort letters" to underwriters with respect to writing, will have furnished the financial statements Solicitation Agent and certain financial information contained in the Registration Statement.
(g) On the Closing Date, the Dealer Manager shall have received a certificate, dated the respective date of delivery thereof, signed by an executive officer of the Company, to the effect set forth in Section 6(c) above and further to the effect that the representations and warranties of the Company and each Guarantor set forth in Section 5 of this Agreement are true and correct as of the respective date of delivery thereof and that the Company and each Guarantor have complied with, or received waivers from the Dealer Manager with respect toa copy thereof), all (v) its awareness of any material developments in connection with the agreements and satisfied all of the conditions contained herein on their part to be performed or satisfied hereunder on or before the Commencement Date and the Closing DateOffer, as applicable. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to any proceedings threatened.
(h) On the Closing Dateincluding, without limitation, the Dealer Manager shall have received the favorable opinion commencement of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.L.L., counsel for the Company and the Guarantors, dated as of the respective date of delivery thereof, substantially in the form of Exhibit A. The opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.L.L shall be rendered any lawsuit relating to the Dealer Manager at Offer, and (vi) any other information relating to the request of the Company and shall so state therein.
(i) On the Closing DateOffer, the Dealer Manager shall have received Offer Documents or this Agreement which the favorable opinion of McGuireWoods LLP, counsel for the Dealer Manager, dated as of the respective date of delivery thereof, with respect to the matters covered in paragraphs of 11, 12, 14 Solicitation Agent and the last paragraph of the form of opinion contained in Exhibit A as well as such other related matters as the Dealer Manager may from time to time 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.
(j) On the Closing Date, the Dealer Manager shall be satisfied with the terms and conditions of the New Indenture.
(k) The Dealer Manager shall have received such other documents and certificates as are reasonably requested by the Dealer Manager or its counsel.
Appears in 1 contract
Sources: Solicitation Agent and Dealer Manager Agreement (Chaparral Energy, Inc.)
Conditions and Obligations. The obligation of the Dealer Manager to act as a Dealer Manager hereunder shall at all times be subject, in its discretion, to the conditions that:
(a) All representations and warranties of the Company and each of the Guarantors Offeror contained herein or in any certificate or writing delivered hereunder at all times during the Exchange Tender Offer shall be true and correct in all material respectscorrect.
(b) Each of the Company and each Guarantor The Offeror at all times during the Exchange Tender Offer shall have performed, in all material respectsor is performing, all of its obligations as are required hereunder required at such times as of such time to have been performed by itare specified herein.
(c) No stop order suspending ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, United States counsel for the effectiveness of Offeror and ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇. e ▇▇▇▇▇▇▇ Advogados, Brazilian counsel for the Registration Statement or any part thereof Offeror shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with.
(d) Subsequent delivered to the execution and delivery of this Agreement and Dealer Manager opinions, prior to the Closing Date, there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations, commencement of the Company Tender Offer and its subsidiaries, taken as a whole, from that set forth in the Exchange Offer Material (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement) that, in the Dealer Manager's judgment, is material and adverse and that makes it, in the Dealer Manager's judgment, impracticable to market the New Notes on the terms and in the manner contemplated in the Exchange Offer Material.
(e) On or before the Closing Date, the Company shall have completed the refinancing of the Credit Agreement.
(f) On the Closing Date, the Dealer Manager shall have received a letter, dated the date of delivery thereof, in form and substance satisfactory to the Dealer Manager, from Ernst & Young LLP containing statements the forms of which are attached as Exhibits A and information of the type ordinarily included in accountants' "comfort letters" to underwriters B hereto, respectively.
(d) No stop order, restraining order or injunction has been issued, and no litigation shall have been commenced or threatened, with respect to (i) the financial statements making or the consummation of the Tender Offer, (ii) the execution, delivery or performance by the Offeror of this Agreement or (iii) any of the transactions in connection with, or contemplated by, the Tender Documents before any agency, court, or other governmental body which the Dealer Manager or its legal counsel in their sole discretion believes makes it inadvisable or impracticable for the Dealer Manager to continue to render services pursuant hereto and certain financial information contained in it shall not have otherwise become unlawful under any law or regulation, federal, state or local, for the Registration StatementDealer Manager so to act, or continue so to act, as the case may be.
(ge) On At the Closing Date, there shall have been delivered to the Dealer Manager shall have received Manager, on behalf of the Offeror, a certificatecertificate of the Chief Executive Officer and the Chief Financial Officer of the Offeror, dated the respective date of delivery thereofClosing Date, signed by an executive officer of the Company, to the effect set forth in Section 6(c) above and further to the effect stating that the representations and warranties of the Company and each Guarantor set forth in Section 5 of this Agreement 4 hereof are true and correct accurate as of the respective date hereof, at all times during the period of delivery thereof each Tender Offer, and that as of the Company and each Guarantor Closing Date.
(f) The Offeror shall have complied withadvised the Dealer Manager promptly of (i) the occurrence of any event which could cause the Offeror to withdraw, rescind or terminate the Tender Offer or would permit the Offeror to exercise any right not to purchase Class A Common Shares tendered under the Tender Offer, (ii) the occurrence of any event, or received waivers from the discovery of any fact, the occurrence or existence of which it believes would make it necessary or advisable to make any change in the Tender Documents being used or would cause any representation or warranty contained in this Agreement to be untrue or inaccurate, (iii) any proposal by the Offeror or requirement to make, amend or supplement any Tender Document or any filing in connection with the Tender Offer pursuant to the Exchange Act or any applicable law, rule or regulation, (iv) its awareness of the issuance by any regulatory authority of any comment or order or the taking of any other action concerning the Tender Offer (and, if in writing, will have furnished the Dealer Manager with respect toa copy thereof), all (v) its awareness of any material developments in connection with the agreements and satisfied all of Tender Offer or the conditions contained herein on their part to be performed or satisfied hereunder on or before the Commencement Date and the Closing Datefinancing thereof, as applicable. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to any proceedings threatened.
(h) On the Closing Dateincluding, without limitation, the Dealer Manager shall have received the favorable opinion commencement of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.L.L., counsel for the Company and the Guarantors, dated as of the respective date of delivery thereof, substantially in the form of Exhibit A. The opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.L.L shall be rendered any lawsuit relating to the Dealer Manager at Tender Offer and (vi) any other information relating to the request of the Company and shall so state therein.
(i) On the Closing DateTender Offer, the Dealer Manager shall have received the favorable opinion of McGuireWoods LLP, counsel for the Dealer Manager, dated as of the respective date of delivery thereof, with respect to the matters covered in paragraphs of 11, 12, 14 and the last paragraph of the form of opinion contained in Exhibit A as well as such other related matters as Tender Documents or this Agreement which the Dealer Manager may from time to time 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.
(j) On the Closing Date, the Dealer Manager shall be satisfied with the terms and conditions of the New Indenture.
(kg) The Dealer Manager shall have received such other documents and certificates evidence of the agreement of the Process Agent to act as are reasonably requested by the Dealer Manager or its counselprocess agent of each the Offeror, as described in Section 8(c) hereof.
Appears in 1 contract
Conditions and Obligations. The obligation of the Solicitation Agent and Dealer Manager to act as a Dealer Manager solicitation agent and/or dealer manager hereunder shall at all times be subject, in its discretion, to the conditions thatfollowing conditions:
(a) All representations and warranties of the Company and each of the Guarantors contained herein or in any certificate or writing delivered hereunder at all times during the Exchange Offer shall be true and correct in all material respectscorrect. The Company acknowledges that ▇▇▇▇▇ Fargo’s agreement to act, or to continue to act, as Solicitation Agent and 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) Each of the The Company and each Guarantor shall have performed, at all times during the Exchange Offer shall have performedOffer, in all material respects, all of its obligations hereunder required as of such time to have been performed by it.
(c) No stop order suspending The Company will furnish to the effectiveness Solicitation Agent and Dealer Manager on the date hereof and on the Initial Settlement Date, (i) an opinion of McAfee & ▇▇▇▇, P.C., counsel to the Company, addressed to the Solicitation Agent and Dealer Manager, in the form attached hereto as Annex B-1, and (ii) an opinion of the Registration Statement or any part thereof shall have been issued and no proceeding for that purpose shall have been initiated or threatened by the Commission; and all requests for additional information on the part General Counsel of the Commission shall have been complied with.Company, addressed to the Solicitation Agent and Dealer Manager, in the form attached hereto as Annex B-2
(d) Subsequent to On the execution and delivery of this Agreement and prior to the Closing Initial Settlement Date, there shall not have occurred any changebeen delivered to the Solicitation Agent and Dealer Manager, on behalf of the Company, a certificate of the Chief Executive Officer or any development involving a prospective change, in Vice President and the condition, financial Chief Financial Officer or otherwise, or in the earnings, business or operations, Vice President and Treasurer of the Company Company, dated as of such date, and its subsidiaries, taken as a whole, from stating that the representations and warranties set forth in the Exchange Offer Material (exclusive of any amendments or supplements thereto subsequent to the date of this Agreement) that, in the Dealer Manager's judgment, is material Section 4 hereof are true and adverse and that makes it, in the Dealer Manager's judgment, impracticable to market the New Notes accurate as if made on the terms and in the manner contemplated in the Exchange Offer Materialsuch date.
(e) On 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 Closing DateCommission, any other governmental or regulatory authority, agency or any court, with respect to the Company Transactions which the Solicitation Agent and Dealer Manager or its legal counsel in good faith believe makes it inadvisable for the Solicitation Agent and Dealer Manager to continue to render services pursuant hereto, and it shall not have completed otherwise become unlawful under any law or regulation, federal, state, local or foreign, for the refinancing of Solicitation Agent and Dealer Manager to so act, or continue so to so act, as the Credit Agreementcase may be.
(f) On The Company shall have advised the Closing DateSolicitation Agent and Dealer Manager promptly of (i) the occurrence of any event which could cause the Company to withdraw, rescind or terminate the Offer, (ii) the occurrence of any event, or the discovery of any fact, the Dealer Manager shall have received a letteroccurrence or existence of which it believes would require the making of any material change in the Offer Documents being used or would cause any representation or warranty contained in this Agreement to be untrue or inaccurate in any material respect, dated (iii) any proposal by the date of delivery thereofCompany or requirement to make, amend or supplement any Offer Documents (including the documents incorporated by reference therein) or any filing in form and substance satisfactory connection with the Offer pursuant to the Dealer ManagerExchange Act or any other applicable law, from Ernst & Young LLP containing statements and information rule or regulation, (iv) its awareness of the type ordinarily included 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, if in accountants' "comfort letters" to underwriters with respect to writing, will have furnished the financial statements Solicitation Agent and certain financial information contained in the Registration Statement.
(g) On the Closing Date, the Dealer Manager shall have received a certificate, dated the respective date of delivery thereof, signed by an executive officer of the Company, to the effect set forth in Section 6(c) above and further to the effect that the representations and warranties of the Company and each Guarantor set forth in Section 5 of this Agreement are true and correct as of the respective date of delivery thereof and that the Company and each Guarantor have complied with, or received waivers from the Dealer Manager with respect toa copy thereof), all (v) its awareness of any material developments in connection with the agreements and satisfied all of the conditions contained herein on their part to be performed or satisfied hereunder on or before the Commencement Date and the Closing DateOffer, as applicable. The officer signing and delivering such certificate may rely upon the best of his or her knowledge as to any proceedings threatened.
(h) On the Closing Dateincluding, without limitation, the Dealer Manager shall have received the favorable opinion commencement of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.L.L., counsel for the Company and the Guarantors, dated as of the respective date of delivery thereof, substantially in the form of Exhibit A. The opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ P.L.L shall be rendered any lawsuit relating to the Dealer Manager at Offer, and (vi) any other information relating to the request of the Company and shall so state therein.
(i) On the Closing DateOffer, the Dealer Manager shall have received Offer Documents or this Agreement which the favorable opinion of McGuireWoods LLP, counsel for the Dealer Manager, dated as of the respective date of delivery thereof, with respect to the matters covered in paragraphs of 11, 12, 14 Solicitation Agent and the last paragraph of the form of opinion contained in Exhibit A as well as such other related matters as the Dealer Manager may from time to time 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.
(j) On the Closing Date, the Dealer Manager shall be satisfied with the terms and conditions of the New Indenture.
(k) The Dealer Manager shall have received such other documents and certificates as are reasonably requested by the Dealer Manager or its counsel.
Appears in 1 contract
Sources: Solicitation Agent and Dealer Manager Agreement (Chaparral Energy, Inc.)