Absence of Fiduciary Relationship. The Company acknowledges and agrees that: (a) Each Agent is acting solely as agent in connection with the public offering of the Placement Shares and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such Agent has advised or is advising the Company on other matters, and such Agent has no obligation to the Company respecting the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement; (b) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement; (c) the Agent has not provided any legal, accounting, regulatory or tax advice respecting the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate; (d) it is aware that the Agent and its affiliates are engaged in a broad range of transactions that may involve interests that differ from those of the Company and the Agent has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and (e) it waives, to the fullest extent permitted by law, any claims it may have against any Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no Agent will have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly available.
Appears in 11 contracts
Samples: At the Market Issuance Sales Agreement (RDE, Inc.), At the Market Issuance Sales Agreement (Aclarion, Inc.), At the Market Issuance Sales Agreement (Oragenics Inc)
Absence of Fiduciary Relationship. The Each of the Company and the Operating Partnership acknowledges and agrees that:
(a) Each the Sales Agent is acting solely as agent and/or principal in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between among the Company Company, the Operating Partnership or any of its their respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such the Sales Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such the Sales Agent has advised or is advising the Company and/or the Operating Partnership on other matters, and such the Sales Agent has no obligation to the Company respecting or the Operating Partnership with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities sold pursuant to this Agreement was not established by the Sales Agent;
(c) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(cd) the Sales Agent has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(de) it is aware that the Sales Agent and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Sales Agent has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company, except or required by applicable law; and
(ef) it waives, to the fullest extent permitted by law, any claims it may have against any the Sales Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares Securities under this Agreement and agrees that no the Sales Agent will shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly available.
Appears in 10 contracts
Samples: Equity Distribution Agreement (Extra Space Storage Inc.), Equity Distribution Agreement (Extra Space Storage Inc.), Equity Distribution Agreement (Extra Space Storage Inc.)
Absence of Fiduciary Relationship. The Company Each of the Transaction Entities, severally and not jointly, acknowledges and agrees that:
(a) Each Placement Agent is acting solely as agent and/or principal in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company Transaction Entities or any of its their respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such Placement Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such Placement Agent has advised or is advising the Company Transaction Entities on other matters, and such Placement Agent has no obligation to the Company respecting Transaction Entities with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities set forth in this Agreement was not established by Placement Agent;
(c) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(cd) the Placement Agent has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(de) it is aware that the Placement Agent and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company Transaction Entities and the Placement Agent has no obligation to disclose such interests and transactions to the Company Transaction Entities by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(ef) it waives, to the fullest extent permitted by law, any claims it may have against any Placement Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no Placement Agent will shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, Transaction Entities or employees or creditors of Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly availableTransaction Entities.
Appears in 10 contracts
Samples: Equity Distribution Agreement (American Assets Trust, L.P.), Equity Distribution Agreement (American Assets Trust, L.P.), Equity Distribution Agreement (American Assets Trust, L.P.)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each the Agent is acting solely has been retained to act as sales agent in connection with the public offering sale of the Placement Shares and in connection with each transaction contemplated by this Agreement and Shares, the process leading to such transactions, Agent has acted at arms’ length and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such the Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such the Agent has advised or is advising the Company on other matters, matters and such the Agent has no obligation duties or obligations to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreementherein;
(b) it the Company is capable of evaluating evaluating, and understanding, understanding and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) neither the Agent has not nor its affiliates have provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it the Company has been advised and is aware that the Agent and its affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and that the Agent has and its affiliates have no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; , provided that the Agent hereby agrees not to engage in any such transaction that which would cause its interests to be in direct conflict with the best interests of the Companyprohibited under Regulation M; and
(e) it the Company waives, to the fullest extent permitted by law, any claims it may have against any the Agent or its affiliates for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under transactions contemplated by this Agreement and agrees that the Agent and its affiliates shall have no Agent will have any liability (whether direct or indirect, in contract, tort or otherwise) to it the Company in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf of or in right of it or the Company, including stockholders (or other equity holders), creditors or employees or creditors of the Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly available.
Appears in 9 contracts
Samples: Sales Agreement (Unicycive Therapeutics, Inc.), Sales Agreement (GENELUX Corp), Sales Agreement (NextCure, Inc.)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each Agent each of the Underwriters is acting solely as agent an underwriter in connection with the public offering sale of the Placement Shares and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, Securities and no fiduciary fiduciary, advisory or advisory agency relationship between the Company or and any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such Agent, on the other hand, Underwriters has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such Agent any of the Underwriters has advised or is advising the Company on other matters, ;
(b) the public offering price of the Securities and such Agent has no obligation the price to be paid by the Company respecting Underwriters for the transactions contemplated by this Agreement except the obligations expressly Securities set forth in this AgreementAgreement were established by the Company following discussions and arms-length negotiations with the Representatives;
(bc) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the Agent has not provided any legal, accounting, regulatory or tax advice respecting the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware that the Agent Underwriters and its their respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and that none of the Agent Underwriters has no any obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(e) it waives, to the fullest extent permitted by applicable law, it waives any claims it may have against any Agent of the Underwriters for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no Agent will none of the Underwriters shall have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the CompanyCompany or any stockholders, employees or creditors of Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly available.
Appears in 7 contracts
Samples: Underwriting Agreement (Zogenix, Inc.), Underwriting Agreement (Zogenix, Inc.), Underwriting Agreement (Zogenix, Inc.)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each The Placement Agent is acting solely as agent and/or principal in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such the Placement Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such the Placement Agent has advised or is advising the Company on other matters, and such the Placement Agent has no obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities was not established by the Placement Agent; it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the Placement Agent has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware that the Placement Agent and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Placement Agent has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(e) it waives, to the fullest extent permitted by law, any claims arising out of this Agreement or the transactions contemplated hereby it may have against any the Placement Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no the Placement Agent will shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly available.
Appears in 6 contracts
Samples: Equity Distribution Agreement (Ellington Financial Inc.), Equity Distribution Agreement (Ellington Residential Mortgage REIT), Equity Distribution Agreement (Ellington Financial Inc.)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each Agent MLV is acting solely as agent in connection with the public offering of the Placement Shares and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such AgentMLV, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such Agent MLV has advised or is advising the Company on other matters, and such Agent MLV has no obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the Agent MLV has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware that the Agent MLV and its affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Agent MLV has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent MLV hereby agrees not to engage in any such transaction that which would cause its interests to be in direct conflict with the best interests of the Company; and
(e) it waives, to the fullest extent permitted by law, any claims it may have against any Agent MLV for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no Agent will MLV shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect of such AgentMLV’s obligations under this Agreement and to keep information provided by the Company to the Agent’s MLV and the Agents’ MLV's counsel confidential to the extent not otherwise publicly publicly-available.
Appears in 5 contracts
Samples: At the Market Issuance Sales Agreement (Emerald Oil, Inc.), At the Market Issuance Sales Agreement (PostRock Energy Corp), At the Market Issuance Sales Agreement (Fx Energy Inc)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each Agent MLV is acting solely as agent in connection with the public offering of the Placement Shares and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such AgentMLV, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such Agent MLV has advised or is advising the Company on other matters, and such Agent MLV has no obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the Agent MLV has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware that the Agent MLV and its affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Agent MLV has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent MLV hereby agrees not to engage in any such transaction that which would cause its interests to be in direct conflict with the best interests of the Company; and
(e) it waives, to the fullest extent permitted by law, any claims it may have against any Agent MLV for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no Agent will MLV shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect of such AgentMLV’s obligations under this Agreement and to keep information provided to MLV and MLV’s counsel by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly publicly-available.
Appears in 5 contracts
Samples: At Market Issuance Sales Agreement (Wave Systems Corp), At Market Issuance Sales Agreement (Beacon Power Corp), At Market Issuance Sales Agreement (Biocryst Pharmaceuticals Inc)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each the Agent is acting solely as agent in connection with the public offering of the Placement Shares and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such the Agent, on the other hand, has have been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such the Agent has advised or is advising the Company on other matters, and such the Agent has no obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) neither the Agent has not nor its affiliates have provided any legal, accounting, regulatory or tax advice respecting the transactions contemplated by this Agreement and it has have consulted its their own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware that the Agent and its affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Agent has and its affiliates have no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(e) it waives, to the fullest extent permitted by law, any claims it may have against any the Agent or their affiliates for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no the Agent will and its affiliates shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of the Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly available.
Appears in 4 contracts
Samples: Sales Agreement (SITIME Corp), Sales Agreement (Innovative Solutions & Support Inc), Sales Agreement (Momentus Inc.)
Absence of Fiduciary Relationship. The Company Notwithstanding any other provision of this Agreement or any provision of any other Credit Document, (i) none of the Joint Lead Arrangers, the Co-Documentation Agents or any Lender shall, solely by reason of this Agreement or any other Credit Document, have any fiduciary, advisory or agency relationship or duty in respect of any Lender or any other Person and (ii) Holdings and the Borrowers hereby waive, to the fullest extent permitted by law, any claims they may have against any Joint Lead Arranger, any Co-Documentation Agent or any Lender for breach of fiduciary duty or alleged breach of fiduciary duty Each Agent, Lender and their Affiliates may have economic interests that conflict with those of the Credit Parties, their stockholders and/or their Affiliates. In connection with all aspects of each transaction contemplated hereby, each Credit Party acknowledges and agrees that:
: (ai) Each Agent is acting solely as agent the credit facilities provided for hereunder and any related arranging or other services in connection therewith (including in connection with the public offering any amendment, waiver or other modification hereof or of the Placement Shares and in connection with each any other Credit Document) are an arm’s-length commercial transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its Credit Parties and their respective affiliates, stockholders (or other equity holders), creditors or employees or any other partyAffiliates, on the one hand, and such Agent, the Agents and the Lenders on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such Agent has advised or is advising the Company on other matters, and such Agent has no obligation to the Company respecting the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) it each Credit Party is capable of evaluating and understanding, understanding and understands and accepts, accepts the terms, risks and conditions of the transactions contemplated hereby and by this Agreement;
the other Credit Documents (cincluding any amendment, waiver or other modification hereof or thereof) the Agent has not provided and (ii) advice with respect to any legal, accounting, regulatory or tax advice respecting of the transactions contemplated by this Agreement hereby (including any amendment, waiver or other modification hereof or of any other Credit Document) and it each of the Credit Parties has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware that the Agent and its affiliates are engaged in a broad range of transactions that may involve interests that differ from those of the Company and the Agent has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(e) it waives, to the fullest extent permitted by law, any claims it may have against any Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no Agent will have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly available.
Appears in 4 contracts
Samples: Credit Agreement (Ryerson Holding Corp), Credit Agreement (Ryerson Holding Corp), Credit Agreement (Ryerson Holding Corp)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each each Agent is acting solely as agent in connection with the public offering of the Placement Shares and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such Agentthe Agents, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such Agent has advised or is advising the Company on other matters, and such no Agent has no any obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;Agreement;
(b) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;Agreement;
(c) the no Agent has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;appropriate;
(d) it is aware that the each Agent and its affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the such Agent has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; otherwise; provided that the each Agent hereby agrees not to engage in any such transaction that which would cause its interests to be in direct conflict with the best interests of the Company; Company; and
(e) it waives, to the fullest extent permitted by law, any claims it may have against any an Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no such Agent will shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided to such Agent and its counsel by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly publicly-available.
Appears in 4 contracts
Samples: At Market Issuance Sales Agreement (Horizon Technology Finance Corp), At Market Issuance Sales Agreement (Horizon Technology Finance Corp), At Market Issuance Sales Agreement (Horizon Technology Finance Corp)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each Agent is acting solely as agent in connection with the public offering of the Placement Shares and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such Agent has advised or is advising the Company on other matters, and such Agent has no obligation to the Company respecting the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the Agent has Agents have not provided any legal, accounting, regulatory or tax advice respecting the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware that the Agent Agents and its their respective affiliates are engaged in a broad range of transactions that may involve interests that differ from those of the Company and the Agent has Agents have no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent Agents hereby agrees agree not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(e) it waives, to the fullest extent permitted by law, any claims it may have against any Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no Agent will have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly available.
Appears in 4 contracts
Samples: At the Market Issuance Sales Agreement (ENDRA Life Sciences Inc.), At the Market Issuance Sales Agreement (ENDRA Life Sciences Inc.), At the Market Issuance Sales Agreement (ENDRA Life Sciences Inc.)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each the Agent is acting solely as agent in connection with the public offering of the Placement Shares and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such the Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such the Agent has advised or is advising the Company on other matters, and such the Agent has no obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the Agent has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware that the Agent and its affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Agent has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that which would cause its interests to be in direct conflict with the best interests of the Company; and
(e) it waives, to the fullest extent permitted by law, any claims it may have against any the Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no the Agent will shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect of such the Agent’s obligations under this Agreement and to keep information provided to the Agent and the Agent’s counsel by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly publicly-available.
Appears in 4 contracts
Samples: At Market Issuance Sales Agreement (MONROE CAPITAL Corp), At Market Issuance Sales Agreement (MONROE CAPITAL Corp), At Market Issuance Sales Agreement (MONROE CAPITAL Corp)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each Agent each of the Agents, the Forward Sellers and the Forward Purchasers is acting solely as agent and/or principal in connection with the public offering of the Placement Shares and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such each Agent, Forward Seller and Forward Purchaser, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such Agent any Agent, Forward Seller or Forward Purchaser has advised or is advising the Company on other matters, and such Agent has no the Agents, the Forward Sellers and the Forward Purchasers do not have any obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) it the public sales price of the Shares set forth in this Agreement was not established by any of the Agents, the Forward Sellers or the Forward Purchasers;
(c) the Company is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(cd) none of the Agent Agents, the Forward Sellers or the Forward Purchasers has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it the Company has deemed appropriate;
(de) it the Company is aware that the Agent Agents, the Forward Sellers and its the Forward Purchasers and their respective affiliates are engaged in a broad range of transactions that may involve interests that differ from those of the Company Company, and none of the Agent Agents, the Forward Sellers or the Forward Purchasers has no any obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(ef) it the Company waives, to the fullest extent permitted by law, any claims it may have against any Agent Agent, Forward Seller or Forward Purchaser for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no Agent will none of the Agents, the Forward Sellers or the Forward Purchasers shall have any liability (whether direct or indirect, in contract, tort or otherwise) to it the Company in respect of such a fiduciary duty claim or to any Person person or entity asserting a fiduciary duty claim on its behalf or in right of it or the Company, Company or employees or creditors of the Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly available.
Appears in 3 contracts
Samples: Equity Distribution Agreement (CMS Energy Corp), Equity Distribution Agreement (CMS Energy Corp), Equity Distribution Agreement (CMS Energy Corp)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
: (a) Each the Placement Agent is acting have been retained solely to act as agent Placement Agent in connection with the public offering sale of the Placement IPO Shares and in connection with each transaction contemplated by this Agreement and the process leading to such transactionsthat no fiduciary, and no fiduciary advisory or advisory agency relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on and the one hand, and such Agent, on the other hand, has Placement Agent have been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such the Placement Agent has have advised or is are advising the Company on other matters, matters and such that the Placement Agent has no obligation to owe the Company respecting the transactions contemplated by this Agreement except the only those duties and obligations expressly set forth in this Agreement;
; (b) it the Share Purchase Price and other terms of the Securities set forth in this Agreement were established by the Company following discussions and arms-length negotiations with the Placement Agent and the Company is capable of evaluating and understanding, understanding and understands and accepts, accepts the terms, risks and conditions of the transactions contemplated by this Agreement;
; (c) the Agent has not provided any legal, accounting, regulatory or tax advice respecting the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware been advised that the Placement Agent and its affiliates are engaged in a broad range of transactions that may involve interests that differ from those of the Company and that the Placement Agent has have no obligation to disclose such interests interest and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwiserelationship; provided and (d) it has been advised that the Placement Agent hereby agrees are acting, in respect of the transactions contemplated by this Agreement, solely for the benefit of the Placement Agent, and not to engage in any such transaction on behalf of the Company and that would cause its the Placement Agent may have interests to be in direct conflict with the best interests that differ from those of the Company; and
(e) it waives, . The Company waives to the fullest full extent permitted by law, applicable law any claims it may have against any the Placement Agent for breach of fiduciary duty or arising from an alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no Agent will have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly availableOffering.
Appears in 3 contracts
Samples: Placement Agency Agreement (Boxlight Corp), Placement Agency Agreement (Boxlight Corp), Placement Agency Agreement (Boxlight Corp)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
: (a) Each the Placement Agent is acting has been retained solely to act as agent Placement Agent in connection with the public offering sale of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactionsthat no fiduciary, and no fiduciary advisory or advisory agency relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on and the one hand, and such Agent, on the other hand, has Placement Agent have been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such the Placement Agent has advised or is are advising the Company on other matters, matters and such that the Placement Agent has no obligation to owes the Company respecting the transactions contemplated by this Agreement except the only those duties and obligations expressly set forth in this Agreement;
; (b) it the Share Purchase Price and other terms of the Securities set forth in this Agreement were established by the Company following discussions and arms-length negotiations with the Placement Agent and the Company is capable of evaluating and understanding, understanding and understands and accepts, accepts the terms, risks and conditions of the transactions contemplated by this Agreement;
; (c) the Agent has not provided any legal, accounting, regulatory or tax advice respecting the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware been advised that the Placement Agent and its affiliates are engaged in a broad range of transactions that may involve interests that differ from those of the Company and that the Placement Agent has no obligation to disclose such interests interest and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwiserelationship; provided and (d) it has been advised that the Placement Agent hereby agrees are acting, in respect of the transactions contemplated by this Agreement, solely for the benefit of the Placement Agent, and not to engage in any such transaction on behalf of the Company and that would cause its the Placement Agent may have interests to be in direct conflict with the best interests that differ from those of the Company; and
(e) it waives, . The Company waives to the fullest full extent permitted by law, applicable law any claims it may have against any the Placement Agent for breach of fiduciary duty or arising from an alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no Agent will have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly availableOffering.
Appears in 3 contracts
Samples: Placement Agency Agreement (Addentax Group Corp.), Placement Agency Agreement (Greenpro Capital Corp.), Placement Agency Agreement (Greenpro Capital Corp.)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each Agent CF&Co is acting solely as agent (or as principal pursuant to a separate underwriting or similar agreement described in Section 1) in connection with the public offering of the Placement Shares and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such AgentCF&Co, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such Agent CF&Co has advised or is advising the Company on other matters, and such Agent CF&Co has no obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the Agent CF&Co has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware that the Agent CF&Co and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Agent CF&Co has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that ;
(e) the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests price of the CompanyShares sold pursuant to this Agreement will not be established by CF&Co; and
(ef) it waives, to the fullest extent permitted by law, any claims it may have against any Agent CF&Co for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no Agent will CF&Co shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly available.
Appears in 3 contracts
Samples: Equity Distribution Agreement (Essex Property Trust Inc), Equity Distribution Agreement (Essex Property Trust Inc), Equity Distribution Agreement (Essex Property Trust Inc)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each Agent of the Underwriters is acting solely as agent an underwriter in connection with the public offering of the Placement Shares and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, Securities and no fiduciary fiduciary, advisory or advisory agency relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such Agentany of the Underwriters, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such Agent has any of the Underwriters have advised or is advising the Company on other matters, matters and such Agent none of the Underwriters has no any obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities and the price to be paid by the Underwriters for the Securities set forth in this Agreement were established by the Company following discussions and arms-length negotiations with the Representatives;
(c) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(cd) in connection with each transaction contemplated by this Agreement and the Agent process leading to such transactions, each Underwriter is and has been acting solely as principal and not as fiduciary, advisor or agent of the Company or any of its respective affiliates, partners, creditors or employees or any other party;
(e) none of the Underwriters has provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(df) it is aware that the Agent Underwriters and its their respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and that none of the Agent Underwriters has no any obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Companyrelationship; and
(eg) it waives, to the fullest extent permitted by law, any claims it may have against any Agent of the Underwriters for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no Agent will none of the Underwriters shall have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the CompanyCompany or any partners, employees or creditors of the Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly available.
Appears in 3 contracts
Samples: Underwriting Agreement (Southern Union Co), Underwriting Agreement (Panhandle Eastern Pipe Line Co Lp), Underwriting Agreement (Panhandle Eastern Pipe Line Co Lp)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each Agent MLV is acting solely as agent in connection with the public offering of the Placement Shares and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holdersequityholders), creditors or employees or any other party, on the one hand, and such AgentMLV, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such Agent MLV has advised or is advising the Company on other matters, and such Agent MLV has no obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the Agent MLV has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;; and
(d) it is aware that the Agent MLV and its affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Agent MLV has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent MLV hereby agrees not to engage in any such transaction that which would cause its interests to be in direct conflict with the best interests of the Company; and
(e) it waives, to the fullest extent permitted by law, any claims it may have against any Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no Agent will have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly available.
Appears in 2 contracts
Samples: At Market Issuance Sales Agreement (Aeterna Zentaris Inc.), At Market Issuance Sales Agreement (Aeterna Zentaris Inc.)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each The Placement Agent is acting solely as agent and/or principal in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such the Placement Agent, on the other hand, has have been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such the Placement Agent has advised or is advising the Company on other matters, and such the Placement Agent has no obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities was not established by the Placement Agent; it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the Placement Agent has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware that the Placement Agent and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Placement Agent has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(e) it waives, to the fullest extent permitted by law, any claims it may have against any the Placement Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no the Placement Agent will shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly available.
Appears in 2 contracts
Samples: Equity Distribution Agreement (Two Harbors Investment Corp.), Equity Distribution Agreement (Two Harbors Investment Corp.)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each Agent Noble is acting solely as agent in connection with the public offering sale of the Placement Shares and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such AgentNoble, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such Agent Noble has advised or is advising the Company on other matters, and such Agent Noble has no obligation to the Company respecting with respect to the transactions contemplated by this Agreement Agreement, except the obligations expressly set forth in this Agreement;
(b) it the Company is capable of evaluating and understanding, understanding and understands and accepts, accepts the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the Agent Noble has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement Agreement, and it the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it the Company has been advised and is aware that the Agent Noble and its affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Agent that Noble has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Companyrelationship; and
(e) it the Company waives, to the fullest extent permitted by law, any claims it may have against any Agent Noble, for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that Noble shall have no Agent will have any liability (whether direct or indirect, in contract, tort or otherwise) to it the Company in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf of or in right of it or the Company, including stockholders, partners, employees or creditors of the Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly available.
Appears in 2 contracts
Samples: Equity Distribution Agreement (EuroDry Ltd.), Equity Distribution Agreement (One Stop Systems, Inc.)
Absence of Fiduciary Relationship. The Company Each of the Fund and the Adviser acknowledges and agrees that:
(a) Each Agent the Underwriter is acting solely as agent an underwriter in connection with the public offering of the Placement Shares and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, Securities and no fiduciary fiduciary, advisory or advisory agency relationship between the Company Fund or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other partythe Adviser, on the one hand, and such Agentthe Underwriter, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such Agent the Underwriter has advised or is advising the Company Fund or the Adviser on other matters, matters and such Agent the Underwriter has no obligation to the Company respecting Fund or the Adviser with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities and the price to be paid by the Underwriter for the Securities set forth in this Agreement were established by the Fund following discussions and arms-length negotiations with the Underwriter;
(c) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(cd) in connection with each transaction contemplated by this Agreement and the process leading to such transactions, the Underwriter is and has been acting solely as principal and not as fiduciary, advisor or agent of the Fund or the Adviser or any of their respective affiliates;
(e) the Agent Underwriter has not provided any legal, accounting, regulatory or tax advice respecting to the Fund or the Adviser with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors advisers to the extent it has deemed appropriate;
(df) it is aware that the Agent Underwriter and its affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company Fund and the Agent Adviser, and that the Underwriter has no obligation to disclose such interests and transactions to the Company Fund or the Adviser by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Companyrelationship; and
(eg) it waives, to the fullest extent permitted by law, any claims it may have against any Agent the Underwriter for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no Agent will the Underwriter shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right on behalf of it the Fund or the Company, employees or creditors of Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly availableAdviser.
Appears in 2 contracts
Samples: Underwriting Agreement (Cornerstone Progressive Return Fund), Underwriting Agreement (Cornerstone Progressive Return Fund)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each Agent is The Agents are acting solely as agent and/or principal in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between among the Company or any of its respective affiliates, stockholders shareholders (or other equity holders), creditors or employees or any other party, on the one hand, and such Agentthe Agents, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such Agent has the Agents have advised or is are advising the Company on other matters, and such Agent has the Agents have no obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities set forth in this Agreement was not established by the Agents;
(c) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(cd) the Agent has Agents have not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(de) it is aware that the Agent Agents and its their respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Agent has Agents have no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(ef) it waives, to the fullest extent permitted by law, any claims it may have against any Agent the Agents for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no Agent will the Agents shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly available.
Appears in 2 contracts
Samples: Equity Distribution Agreement (Apple Hospitality REIT, Inc.), Equity Distribution Agreement (Apple Hospitality REIT, Inc.)
Absence of Fiduciary Relationship. The Each of the Company and the Operating Partnership, severally and not jointly, acknowledges and agrees that:
(a) Each Agent The Manager is acting solely as agent and/or principal in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between among the Company Company, the Operating Partnership or any of its their respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such Agentthe Manager, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such Agent the Manager has advised or is advising the Company and/or the Operating Partnership on other matters, and such Agent the Manager has no obligation to the Company respecting or the Operating Partnership with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities set forth in this Agreement was not established by the Manager;
(c) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(cd) the Agent Manager has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(de) it is aware that the Agent Manager and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Agent Operating Partnership and the Manager has no obligation to disclose such interests and transactions to the Company or the Operating Partnership by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that ;
(f) the Agent hereby agrees not to Manager and its respective affiliates may engage in any such transaction that would cause trading in the Common Stock for their own account or for the account of its interests to be in direct conflict with clients at the best interests same time as sales of the CompanyPlacement Securities occur pursuant to this Agreement; and
(eg) it waives, to the fullest extent permitted by law, any claims it may have against any Agent the Manager for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no Agent will the Manager shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, the Operating Partnership, employees or creditors of Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided by the Company to or the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly availableOperating Partnership.
Appears in 2 contracts
Samples: Equity Distribution Agreement (Agree Realty Corp), Equity Distribution Agreement (Agree Realty Corp)
Absence of Fiduciary Relationship. The Each of the Company and the Operating Partnership, severally and not jointly, acknowledges and agrees that:
(a) Each Agent Baird is acting solely as agent and/or principal in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company Company, the Operating Partnership or any of its their respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such AgentBaird, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such Agent Baird has advised or is advising the Company and/or the Operating Partnership on other matters, and such Agent Baird has no obligation to the Company respecting or the Operating Partnership with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities set forth in this Agreement was not established by Baird;
(c) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(cd) the Agent Baird has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(de) it is aware that the Agent Baird and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Agent Operating Partnership and Baird has no obligation to disclose such interests and transactions to the Company or the Operating Partnership by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(ef) it waives, to the fullest extent permitted by law, any claims it may have against any Agent Baird for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no Agent will Baird shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the CompanyCompany or the Operating Partnership, or employees or creditors of Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided by the Company to or the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly availableOperating Partnership.
Appears in 2 contracts
Samples: Equity Distribution Agreement (Whitestone REIT), Equity Distribution Agreement (Whitestone REIT)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each the Agent is acting solely as agent in connection with the public offering of the Placement Shares and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such the Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such the Agent has advised or is advising the Company on other matters, and such the Agent has no obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the Agent has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware that the Agent and its affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Agent has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that which would cause its interests to be in direct conflict with the best interests of the Company; and
(e) it waives, to the fullest extent permitted by law, any claims it may have against any the Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no the Agent will shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect of such the Agent’s obligations under this Agreement and to keep information provided to the Agent and the Agent's counsel by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly publicly-available.
Appears in 2 contracts
Samples: At Market Issuance Sales Agreement (Stellus Capital Investment Corp), At Market Issuance Sales Agreement (Stellus Capital Investment Corp)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each Agent MLV is acting solely as agent in connection with the public offering of the Placement Shares and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such AgentMLV, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such Agent MLV has advised or is advising the Company on other matters, and such Agent MLV has no obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the Agent MLV has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;; and
(d) it is aware that the Agent MLV and its affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Agent MLV has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent MLV hereby agrees not to engage in any such transaction that which would cause its interests to be in direct conflict with the best interests of the Company; and
(e) it waives, to the fullest extent permitted by law, any claims it may have against any Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no Agent will have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly available.
Appears in 2 contracts
Samples: At Market Issuance Sales Agreement (Aeterna Zentaris Inc.), At Market Issuance Sales Agreement (Aeterna Zentaris Inc.)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each The Agent is acting solely as agent in connection with the public offering of the Placement Shares and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such the Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such the Agent has advised or is advising the Company on other matters, and such the Agent has no obligation to the Company respecting the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the Agent has not provided any legal, accounting, regulatory or tax advice respecting the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware that the Agent and its affiliates are engaged in a broad range of transactions that may involve interests that differ from those of the Company and the Agent has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(e) it waives, to the fullest extent permitted by law, any claims it may have against any Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no Agent will have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect of such the Agent’s obligations under this Agreement and to keep information provided by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly available.
Appears in 2 contracts
Samples: At the Market Issuance Sales Agreement (Alzamend Neuro, Inc.), At the Market Issuance Sales Agreement (Alzamend Neuro, Inc.)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
: (a) Each the Placement Agent is acting has been retained solely to act as agent Placement Agent in connection with the public offering sale of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactionsthat no fiduciary, and no fiduciary advisory or advisory agency relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on and the one hand, and such Agent, on the other hand, Placement Agent has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such the Placement Agent has advised or is advising the Company on other matters, and such ; (b) that the Placement Agent has no obligation to owes the Company respecting the transactions contemplated by this Agreement except the only those duties and obligations expressly set forth in this Agreement;
; (bc) it the Purchase Price and other terms of the Securities set forth in this Agreement were established by the Company following discussions and arms-length negotiations with the Placement Agent and the Company is capable of evaluating and understanding, understanding and understands and accepts, accepts the terms, risks and conditions of the transactions contemplated by this Agreement;
; (c) the Agent has not provided any legal, accounting, regulatory or tax advice respecting the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware been advised that the Placement Agent and its affiliates are engaged in a broad range of transactions that may involve interests that differ from those of the Company and that the Placement Agent has no obligation to disclose such interests interest and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwiserelationship; provided and (d) it has been advised that the Placement Agent hereby agrees is acting, in respect of the transactions contemplated by this Agreement, solely for the benefit of the Placement Agent, and not to engage in any such transaction on behalf of the Company and that would cause its the Placement Agents may have interests to be in direct conflict with the best interests that differ from those of the Company; and
(e) it waives, . The Company waives to the fullest full extent permitted by law, applicable law any claims it may have against any the Placement Agent for breach of fiduciary duty or arising from an alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no Agent will have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly availableOffering.
Appears in 2 contracts
Samples: Placement Agency Agreement (PARETEUM Corp), Placement Agency Agreement (PARETEUM Corp)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) a. Each Distribution Agent is acting solely as agent in connection with the public offering offer and sale of the Placement Shares and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such Agentany of the Distribution Agents, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such Distribution Agent has advised or is advising the Company on other matters, and such Agent none of the Distribution Agents has no any obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement, and in any schedule or exhibit attached hereto;
(b) b. it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the c. no Distribution Agent has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) d. it is aware that the each Distribution Agent and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the such Distribution Agent has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(e) e. it waives, to the fullest extent permitted by law, any claims it may have against any a Distribution Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no such Distribution Agent will shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect of such Distribution Agent’s obligations under this Agreement and to keep information provided by the Company to the Agent’s such Distribution Agent and the Agents’ its counsel confidential to the extent not otherwise publicly publicly-available.
Appears in 2 contracts
Samples: At Market Issuance Sales Agreement (Spectrum Pharmaceuticals Inc), At Market Issuance Sales Agreement (Spectrum Pharmaceuticals Inc)
Absence of Fiduciary Relationship. The Each of the Company and the Adviser, severally and not jointly, acknowledges and agrees that:
(a) Each Agent is The Agents are acting solely as agent agents and/or principal in connection with the public offering of the Placement Shares and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such Agentthe Agents, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such an Agent has advised or is advising the Company on other matters, and such neither Agent has no any obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Shares set forth in this Agreement was not established by the Agents;
(c) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(cd) the neither Agent has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(de) it is aware that the each Agent and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Agent has Agents have no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(ef) it waives, to the fullest extent permitted by law, any claims it may have against any Agent the Agents for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares relating to or arising under this Agreement and agrees that no neither Agent will shall have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly available.
Appears in 2 contracts
Samples: Equity Distribution Agreement (Saratoga Investment Corp.), Equity Distribution Agreement (Saratoga Investment Corp.)
Absence of Fiduciary Relationship. The Each of the Company and the Operating Partnership, severally and not jointly, acknowledges and agrees that:
(a) Each The Agent is acting solely as agent and/or principal in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between among the Company Company, the Operating Partnership or any of its their respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such the Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such the Agent has advised or is advising the Company and/or the Operating Partnership on other matters, and such the Agent has no obligation to the Company respecting or the Operating Partnership with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities set forth in this Agreement was not established by the Agent;
(c) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(cd) the Agent has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(de) it is aware that the Agent and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Operating Partnership and the Agent has no obligation to disclose such interests and transactions to the Company or the Operating Partnership by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that ;
(f) the Agent hereby agrees not to and its respective affiliates may engage in any such transaction that would cause trading in the Common Stock for their own account or for the account of its interests to be in direct conflict with clients at the best interests same time as sales of the CompanyPlacement Securities occur pursuant to this Agreement; and
(eg) it waives, to the fullest extent permitted by law, any claims it may have against any the Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no the Agent will shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, the Operating Partnership, employees or creditors of Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided by the Company to or the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly availableOperating Partnership.
Appears in 2 contracts
Samples: Equity Distribution Agreement (STAG Industrial, Inc.), Equity Distribution Agreement (STAG Industrial, Inc.)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each Agent MLV is acting solely as agent in connection with the public offering of the Placement Shares and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such AgentMLV, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such Agent MLV has advised or is advising the Company on other matters, and such Agent MLV has no obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the Agent MLV has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware that the Agent MLV and its affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Agent MLV has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that that, during the Agent hereby term of this Agreement, MLV agrees not to engage in any such transaction that which would cause its interests to be in direct conflict with the best interests those of the Company; and
(e) it waives, to the fullest extent permitted by law, any claims it may have against any Agent MLV for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no Agent will MLV shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect of such AgentMLV’s obligations under this Agreement and to keep information provided by the Company to the Agent’s MLV and the Agents’ MLV's counsel confidential to the extent not otherwise publicly publicly-available.
Appears in 2 contracts
Samples: At Market Issuance Sales Agreement (Miller Energy Resources, Inc.), At Market Issuance Sales Agreement (Miller Energy Resources, Inc.)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each The Placement Agent is acting solely as agent and/or principal in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such the Placement Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such the Placement Agent has advised or is advising the Company on other matters, and such the Placement Agent has no obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities was not established by the Placement Agent; it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the Placement Agent has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware that the Placement Agent and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Placement Agent has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(e) it waives, to the fullest extent permitted by law, any claims it may have against any the Placement Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no the Placement Agent will shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly available.
Appears in 2 contracts
Samples: Equity Distribution Agreement (Ashford Hospitality Trust Inc), Equity Distribution Agreement (New York Mortgage Trust Inc)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each Agent of the Underwriters is acting solely as agent an underwriter in connection with the public offering of the Placement Shares and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, Securities and no fiduciary fiduciary, advisory or advisory agency relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such Agentany of the Underwriters, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such Agent has any of the Underwriters have advised or is advising the Company on other matters, matters and such Agent none of the Underwriters has no any obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities and the price to be paid by the Underwriters for the Securities set forth in this Agreement were established by the Company following discussions and arms-length negotiations with the Representatives;
(c) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(cd) in connection with each transaction contemplated by this Agreement and the Agent process leading to such transactions, each Underwriter is and has been acting solely as principal and not as fiduciary, advisor or agent of the Company or any of its respective affiliates, partners, creditors or employees or any other party;
(e) none of the Underwriters has provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(df) it is aware that the Agent Underwriters and its their respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and that none of the Agent Underwriters has no any obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Companyrelationship; and
(eg) it waives, to the fullest extent permitted by law, any claims it may have against any Agent of the Underwriters for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no Agent will none of the Underwriters shall have any liability (whether direct or indirect, in in
(h) contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the CompanyCompany or any partners, employees or creditors of the Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly available.
Appears in 2 contracts
Samples: Underwriting Agreement (Southern Union Co), Underwriting Agreement (Panhandle Eastern Pipe Line Co Lp)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each The Placement Agent is acting solely as agent and/or principal in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such the Placement Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such the Placement Agent has advised or is advising the Company on other matters, and such the Placement Agent has no obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities was not established by the Placement Agent; it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the Placement Agent has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware that the Placement Agent and its affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Placement Agent has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(e) it waives, to the fullest extent permitted by law, any claims it may have against any the Placement Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no the Placement Agent will shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly available.
Appears in 2 contracts
Samples: Equity Distribution Agreement (LAVA Therapeutics NV), Equity Distribution Agreement (New York Mortgage Trust Inc)
Absence of Fiduciary Relationship. The Each of the Company and the Operating Partnership, severally and not jointly, acknowledges and agrees that:
(a) Each Agent [ ] is acting solely as agent and/or principal in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between among the Company Company, the Operating Partnership or any of its their respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such Agent[ ], on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such Agent [ ] has advised or is advising the Company and/or the Operating Partnership on other matters, and such Agent [ ] has no obligation to the Company respecting or the Operating Partnership with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities set forth in this Agreement was not established by [ ];
(c) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(cd) the Agent [ ] has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(de) it is aware that the Agent [ ] and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Agent Operating Partnership and [ ] has no obligation to disclose such interests and transactions to the Company or the Operating Partnership by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to ;
(f) [ ] and its respective affiliates may engage in any such transaction that would cause trading in the Common Stock for their own account or for the account of its interests to be in direct conflict with clients at the best interests same time as sales of the CompanyPlacement Securities occur pursuant to this Agreement; and
(eg) it waives, to the fullest extent permitted by law, any claims it may have against any Agent [ ] for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no Agent will [ ] shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, the Operating Partnership, employees or creditors of Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided by the Company to or the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly availableOperating Partnership.
Appears in 2 contracts
Samples: Equity Distribution Agreement (STAG Industrial, Inc.), Equity Distribution Agreement (STAG Industrial, Inc.)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each the Agent is acting solely as agent and/or principal in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such the Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such the Agent has advised or is advising the Company on other matters, and such the Agent has no obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities set forth in this Agreement was not established by the Agent;
(c) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(cd) the Agent has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it the Company has consulted its own legal, accounting, regulatory and tax advisors to the extent it the Company has deemed appropriate;
(de) it is aware that the Agent and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Agent has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(ef) it waives, to the fullest extent permitted by law, any claims it may have against any the Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no the Agent will shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly available.
Appears in 2 contracts
Samples: Equity Distribution Agreement (National Health Investors Inc), Equity Distribution Agreement (National Health Investors Inc)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each the Agent is acting solely as agent in connection with the public offering of the Placement Shares and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such the Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such the Agent has advised or is advising the Company on other matters, and such the Agent has no obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;Agreement;
(b) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;Agreement;
(c) the Agent has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;appropriate;
(d) it is aware that the Agent and its affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Agent has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; otherwise; provided that the Agent hereby agrees not to engage in any such transaction that which would cause its interests to be in direct conflict with the best interests of the Company; Company; and
(e) it waives, to the fullest extent permitted by law, any claims it may have against any the Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no the Agent will shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect of such the Agent’s obligations under this Agreement and to keep information provided to the Agent and the Agent’s counsel by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly publicly-available.
Appears in 2 contracts
Samples: At Market Issuance Sales Agreement (Stellus Capital Investment Corp), At Market Issuance Sales Agreement (Stellus Capital Investment Corp)
Absence of Fiduciary Relationship. The Company Each of the Company, the Adviser and Oxford Funds, severally and not jointly, acknowledges and agrees that:
(a) Each Agent is The Agents are acting solely as agent agents and/or principals in connection with the public offering of the Placement Shares and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such Agentthe Agents, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such an Agent has advised or is advising the Company on other matters, and such no Agent has no any obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Common Shares set forth in this Agreement was not established by the Agents;
(c) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(cd) the no Agent has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(de) it is aware that the each Agent and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the no Agent has no any obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(ef) it waives, to the fullest extent permitted by law, any claims it may have against any Agent the Agents for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no Agent will shall have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company. [Signature Page Follows.] If the foregoing is in accordance with your understanding of our agreement, other than please so indicate in respect the space provided below for that purpose, whereupon this letter shall constitute a binding agreement among the Company, the Adviser, Oxford Funds, Ladenburg and B. Xxxxx. Very truly yours, By: /s/ Jxxxxxxx X. Xxxxx Name: Jxxxxxxx X. Xxxxx Title: Chief Executive Officer By: Oxford Funds, LLC, as Managing Member By: /s/ Jxxxxxxx X. Xxxxx Name: Jxxxxxxx X. Xxxxx Title: Chief Executive Officer By: /s/ Jxxxxxxx X. Xxxxx Name: Jxxxxxxx X. Xxxxx Title: Chief Executive Officer CONFIRMED AND ACCEPTED, as of such Agent’s obligations under this Agreement and to keep information provided by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly available.date first above written: By: /s/ Sxxxx Xxxxxx Name: Sxxxx Xxxxxx Title: Head of Capital Markets
Appears in 1 contract
Samples: Equity Distribution Agreement (Oxford Lane Capital Corp.)
Absence of Fiduciary Relationship. The Each of the Company and the Operating Partnership, severally and not jointly, acknowledges and agrees that:
(a) Each the Sales Agent is acting solely as agent and/or principal in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between among the Company Company, the Operating Partnership or any of its their respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such the Sales Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such the Sales Agent has advised or is advising the Company or the Operating Partnership on other matters, and such the Sales Agent has no obligation to the Company respecting or the Operating Partnership with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities set forth in this Agreement was not established by the Sales Agent;
(c) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(cd) the Sales Agent has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(de) it is aware that the Sales Agent and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Operating Partnership and the Sales Agent has no obligation to disclose such interests and transactions to the Company and the Operating Partnership by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(ef) it waives, to the fullest extent permitted by law, any claims it may have against any the Sales Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no the Sales Agent will shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, the Operating Partnership, employees or creditors of CompanyCompany or the Operating Partnership. [Signature Page Follows.] If the foregoing is in accordance with your understanding of our agreement, other than in respect of such Agent’s obligations under this Agreement please sign and return to keep information provided by the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Sales Agent, the Company and the Operating Partnership in accordance with its terms. Very truly yours, XXXXXXX INDUSTRIAL REALTY, INC. By: /s/ Xxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxxxxxx Title: Co-Chief Executive Officer By: /s/ Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx Title: Co-Chief Executive Officer XXXXXXX INDUSTRIAL REALTY, L.P. By: Xxxxxxx Industrial Realty, Inc., its sole general partner By: /s/ Xxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxxxxxx Title: Co-Chief Executive Officer By: /s/ Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx Title: Co-Chief Executive Officer CONFIRMED AND ACCEPTED, as of the date first above written: BTIG, LLC By: /s/ Xxxxx XxXxx Name: Xxxxx XxXxx Title: Chief Operatin Officer From: [ ] Cc: [` ] To: [ ] Subject: Equity Distribution—Placement Notice Gentlemen: Pursuant to the terms and subject to the conditions contained in the Equity Distribution Agreement between Xxxxxxx Industrial Realty, Inc. (the “Company”) and BTIG, LLC (the “Sales Agent”) dated September 21, 2017 (the “Agreement”), I hereby request on behalf of the Company that the Sales Agent sell up to [ ] shares of the Company’s common stock, par value $[ ] per share, at a minimum market price of $[ ] per share. The Sales Agent shall be paid compensation equal to 1.5% of the gross proceeds from the sales of Securities pursuant to the terms of this Agreement. None.
1. Term Loan Agreement, dated July 24, 2013, among RIF I—Xxx Xxxxxx, LLC, RIF I—Xxxxx Road, LLC, RIF I—Walnut, LLC, RIF I—Oxnard, LLC, RIF II – Kaiser, LLC and RIF III—Irwindale, LLC, collectively as Borrower, and Bank of America, N.A., as Lender.
2. Modification and Loan Assumption Agreement, dated January 24, 2014, by and among RIF I—Xxx Xxxxxx, LLC, RIF I—Xxxxx Road, LLC, RIF I—Oxnard, LLC, RIF I—Walnut, LLC, XXXXXXX BUSINESS CENTER – FULLERTON, LLC, RIF II – Kaiser, LLC, RIF III—Irwindale, LLC and XXXXXXX INDUSTRIAL – MADERA INDUSTRIAL, LLC collectively as Borrower, and Bank of America, N.A., as Lender.
3. Credit Agreement, dated as of January 14, 2016, by and among Xxxxxxx Industrial Realty, L.P., as Borrower, Xxxxxxx Industrial Realty Inc., as Parent, PNC Bank, National Association, as Administrative Agent, and the Agents’ counsel confidential other parties party thereto, as amended by that certain First Amendment to Credit Agreement, dated February 23, 2016, and that certain Second Amendment to Credit Agreement, dated June 30, 2016.
4. Second Amended & Restated Credit Agreement, dated February 14, 2017, by and among Xxxxxxx Industrial Realty, L.P., as Borrower, Xxxxxxx Industrial Realty, Inc., as Parent, Citibank, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, and the extent not otherwise publicly availableother parties party thereto.
5. Note Purchase and Guarantee Agreement, dated July 16, 2015, by and among Xxxxxxx Industrial Realty, L.P., as the Issuer, Xxxxxxx Industrial Realty, Inc., as the Parent Guarantor, and each of the purchasers party thereto, as amended by that certain First Amendment to Note Purchase and Guarantee Agreement, dated June 30, 2016.
6. Note Purchase and Guarantee Agreement, dated as of July 13, 2017, by and among Xxxxxxx Industrial Realty L.P., Xxxxxxx Industrial Realty, Inc. and the purchasers named therein.
Appears in 1 contract
Samples: Equity Distribution Agreement (Rexford Industrial Realty, Inc.)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each Agent Mitsubishi is acting solely as agent (or as principal pursuant to a separate underwriting or similar agreement described in Section 1) in connection with the public offering of the Placement Shares and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such AgentMitsubishi, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such Agent Mitsubishi has advised or is advising the Company on other matters, and such Agent Mitsubishi has no obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the Agent Mitsubishi has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware that the Agent Mitsubishi and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Agent Mitsubishi has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that ;
(e) the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests price of the CompanyShares sold pursuant to this Agreement will not be established by Mitsubishi; and
(ef) it waives, to the fullest extent permitted by law, any claims it may have against any Agent Mitsubishi for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no Agent will Mitsubishi shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly available.
Appears in 1 contract
Samples: Equity Distribution Agreement (Essex Property Trust Inc)
Absence of Fiduciary Relationship. The Each of the Company and the Operating Partnership, severally and not jointly, acknowledges and agrees that:
(a) Each the Sales Agent is acting solely as agent and/or principal in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between among the Company Company, the Operating Partnership or any of its their respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such the Sales Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such the Sales Agent has advised or is advising the Company or the Operating Partnership on other matters, and such the Sales Agent has no obligation to the Company respecting or the Operating Partnership with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities set forth in this Agreement was not established by the Sales Agent;
(c) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(cd) the Sales Agent has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(de) it is aware that the Sales Agent and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Operating Partnership and the Sales Agent has no obligation to disclose such interests and transactions to the Company and the Operating Partnership by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(ef) it waives, to the fullest extent permitted by law, any claims it may have against any the Sales Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no the Sales Agent will shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, the Operating Partnership, employees or creditors of CompanyCompany or the Operating Partnership. [Signature Page Follows.] If the foregoing is in accordance with your understanding of our agreement, other than in respect of such Agent’s obligations under this Agreement please sign and return to keep information provided by the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Sales Agent, the Company and the Operating Partnership in accordance with its terms. Very truly yours, XXXXXXX INDUSTRIAL REALTY, INC. By: /s/ Xxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxxxxxx Title: Co-Chief Executive Officer By: /s/ Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx Title: Co-Chief Executive Officer XXXXXXX INDUSTRIAL REALTY, L.P. By: Xxxxxxx Industrial Realty, Inc., its sole general partner By: /s/ Xxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxxxxxx Title: Co-Chief Executive Officer By: /s/ Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx Title: Co-Chief Executive Officer CONFIRMED AND ACCEPTED, as of the date first above written: CITIGROUP GLOBAL MARKETS INC. By: /s/ Xxxx Xxxxxxxxxxxx Name: Xxxx Xxxxxxxxxxxx Title: Director From: [ ] Cc: [` ] To: [ ] Subject: Equity Distribution—Placement Notice Gentlemen: Pursuant to the Agent’s terms and the Agents’ counsel confidential subject to the extent not otherwise publicly availableconditions contained in the Equity Distribution Agreement between Xxxxxxx Industrial Realty, Inc. (the “Company”) and Citigroup Global Markets Inc. (the “Sales Agent”) dated April 17, 2015 (the “Agreement”), I hereby request on behalf of the Company that the Sales Agent sell up to [ ] shares of the Company’s common stock, par value $[ ] per share, at a minimum market price of $[ ] per share. The Sales Agent shall be paid compensation equal to 1.5% of the gross proceeds from the sales of Securities pursuant to the terms of this Agreement. None.
1. Term Loan Agreement, dated July 24, 2013, among RIF I—Xxx Xxxxxx, LLC, RIF I—Xxxxx Road, LLC, RIF I—Walnut, LLC, RIF I—Oxnard, LLC, RIF II – Kaiser, LLC and RIF III—Irwindale, LLC, collectively as Borrower, and Bank of America, N.A., as Lender.
2. Modification and Loan Assumption Agreement, dated January 24, 2014, by and among RIF I—Xxx Xxxxxx, LLC, RIF I—Xxxxx Road, LLC, RIF I—Oxnard, LLC, RIF I—Walnut, LLC, XXXXXXX BUSINESS CENTER – FULLERTON, LLC, RIF II – Kaiser, LLC, RIF III—Irwindale, LLC and XXXXXXX INDUSTRIAL – MADERA INDUSTRIAL, LLC collectively as Borrower, and Bank of America, N.A., as Lender.
3. Amended & Restated Credit Agreement, dated June 11, 2014, among Xxxxxxx Industrial Realty, L.P., as Borrower, Xxxxxxx Industrial Realty, Inc., as Parent, Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, The Other Lenders Party Thereto, Citigroup Global Markets Inc., PNC Bank, National Association and Xxxxx Fargo Bank, National Association, as Documentation Agents and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Citigroup Global Markets, Inc., as Joint Lead Arrangers and Joint Bookrunners.
4. Loan and Security Agreement, dated June 24, 2014, by and among Xxxxxxx Industrial – SDLAOC, LLC, as borrower, JPMorgan Chase Bank, N.A., as Administrative Agent, the Lenders referenced therein, and X.X. Xxxxxx Securities, LLC, as Sole Bookrunner and Sole Lead Arranger.
Appears in 1 contract
Samples: Equity Distribution Agreement (Rexford Industrial Realty, Inc.)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each Agent MLV is acting solely as agent in connection with the public offering of the Placement Shares and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders shareholders (or other equity holdersequityholders), creditors or employees or any other party, on the one hand, and such AgentMLV, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such Agent MLV has advised or is advising the Company on other matters, and such Agent MLV has no obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the Agent MLV has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware that the Agent MLV and its affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Agent MLV has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent MLV hereby agrees not to engage in any such transaction that which would cause its interests to be in direct conflict with the best interests of the Company; and
(e) it waives, to the fullest extent permitted by law, any claims it may have against any Agent MLV for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no Agent will MLV shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect of such AgentMLV’s obligations under this Agreement and to keep information provided by the Company to the AgentMLV and MLV’s and the Agents’ counsel confidential to the extent not otherwise publicly publicly-available.
Appears in 1 contract
Samples: At Market Issuance Sales Agreement (Cardiome Pharma Corp)
Absence of Fiduciary Relationship. The Company Each of the Company, the Operating Partnership and the Advisor, severally and not jointly, acknowledges and agrees that:
(a) Each The Agent is acting solely as agent and/or principal in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company Company, the Operating Partnership, the Advisor or any of its their respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such the Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such the Agent has advised or is advising the Company Company, the Operating Partnership and/or the Advisor on other matters, and such the Agent has no obligation to the Company respecting Company, the Operating Partnership or the Advisor with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities was not established by the Agent;
(c) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(cd) the Agent has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(de) it is aware that the Agent and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company Company, the Operating Partnership and the Advisor and the Agent has no obligation to disclose such interests and transactions to the Company Company, the Operating Partnership or the Advisor by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that ;
(f) the Agent hereby agrees not to and its respective affiliates may engage in any such transaction that would cause trading in the Common Stock for their own account or for the accounts of its interests to be in direct conflict with clients at the best interests same time as sales of the CompanyPlacement Securities occur pursuant to this Agreement; and
(eg) it waives, to the fullest extent permitted by law, any claims it may have against any the Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no the Agent will shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, the Operating Partnership, the Advisor or their respective employees or creditors of Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly availablecreditors.
Appears in 1 contract
Samples: Equity Distribution Agreement (Ashford Hospitality Trust Inc)
Absence of Fiduciary Relationship. The Company Each of the Transaction Entities, severally and not jointly, acknowledges and agrees that:
(a) Each Agent Xxxxx is acting solely as agent (or as principal pursuant to a separate underwriting or similar agreement described in Section 1) in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such AgentXxxxx, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such Agent Xxxxx has advised or is advising the Company on other matters, and such Agent Xxxxx has no obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the Agent Xxxxx has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware that the Agent Xxxxx and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Agent Xxxxx has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(e) it waives, to the fullest extent permitted by law, any claims it may have against any Agent Xxxxx for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares Securities under this Agreement and agrees that no Agent will Xxxxx shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly available.
Appears in 1 contract
Samples: Equity Distribution Agreement (Kite Realty Group Trust)
Absence of Fiduciary Relationship. The Each of the Company and the Operating Partnership acknowledges and agrees that:
(a) Each Agent RBC is acting solely as agent and/or principal in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between among the Company Company, the Operating Partnership or any of its their respective affiliates, stockholders shareholders (or other equity holders), creditors or employees or any other party, on the one hand, and such AgentRBC, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such Agent RBC has advised or is advising the Company and/or the Operating Partnership on other matters, and such Agent RBC has no obligation to the Company respecting or the Operating Partnership with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities sold pursuant to this Agreement was not established by RBC;
(c) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(cd) the Agent RBC has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(de) it is aware that the Agent RBC and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Agent RBC has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company, except or required by applicable law; and
(ef) it waives, to the fullest extent permitted by law, any claims it may have against any Agent RBC for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares Securities under this Agreement and agrees that no Agent will RBC shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly available.
Appears in 1 contract
Samples: Equity Distribution Agreement (Chambers Street Properties)
Absence of Fiduciary Relationship. The Each of the Company and the Operating Partnership, severally and not jointly, acknowledges and agrees that:
(a) Each the Sales Agent is acting solely as agent and/or principal in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between among the Company Company, the Operating Partnership or any of its their respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such the Sales Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such the Sales Agent has advised or is advising the Company or the Operating Partnership on other matters, and such the Sales Agent has no obligation to the Company respecting or the Operating Partnership with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities set forth in this Agreement was not established by the Sales Agent;
(c) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(cd) the Sales Agent has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(de) it is aware that the Sales Agent and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Operating Partnership and the Sales Agent has no obligation to disclose such interests and transactions to the Company and the Operating Partnership by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(ef) it waives, to the fullest extent permitted by law, any claims it may have against any the Sales Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no the Sales Agent will shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, the Operating Partnership, employees or creditors of CompanyCompany or the Operating Partnership. [Signature Page Follows.] If the foregoing is in accordance with your understanding of our agreement, other than in respect of such Agent’s obligations under this Agreement please sign and return to keep information provided by the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Sales Agent, the Company and the Operating Partnership in accordance with its terms. Very truly yours, XXXXXXX INDUSTRIAL REALTY, INC. By: /s/ Xxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxxxxxx Title: Co-Chief Executive Officer By: /s/ Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx Title: Co-Chief Executive Officer XXXXXXX INDUSTRIAL REALTY, L.P. By: Xxxxxxx Industrial Realty, Inc., its sole general partner By: /s/ Xxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxxxxxx Title: Co-Chief Executive Officer By: /s/ Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx Title: Co-Chief Executive Officer CONFIRMED AND ACCEPTED, as of the date first above written: BB&T Capital Markets, a division of BB&T Securities, LLC By /s/ Xxxx Xxxx Name: Xxxx Xxxx Title: Vice President From: [ ] Cc: [ ] To: [ ] Subject: Equity Distribution—Placement Notice Gentlemen: Pursuant to the terms and subject to the conditions contained in the Equity Distribution Agreement between Xxxxxxx Industrial Realty, Inc. (the “Company”) and BB&T Capital Markets, a division of BB&T Securities, LLC (the “Sales Agent”) dated June 13, 2018 (the “Agreement”), I hereby request on behalf of the Company that the Sales Agent sell up to [ ] shares of the Company’s common stock, par value $[ ] per share, at a minimum market price of $[ ] per share. The Sales Agent shall be paid compensation equal to 1.5% of the gross proceeds from the sales of Securities pursuant to the terms of this Agreement. None.
1. Term Loan Agreement, dated July 24, 2013, among RIF I—Xxx Xxxxxx, LLC, RIF I—Xxxxx Road, LLC, RIF I—Walnut, LLC, RIF I—Oxnard, LLC, RIF II – Xxxxxx, LLC and RIF III—Irwindale, LLC, collectively as Borrower, and Bank of America, N.A., as Lender.
2. Modification and Loan Assumption Agreement, dated January 24, 2014, by and among RIF I—Xxx Xxxxxx, LLC, RIF I—Xxxxx Road, LLC, RIF I—Oxnard, LLC, RIF I—Walnut, LLC, XXXXXXX BUSINESS CENTER – FULLERTON, LLC, RIF II – Xxxxxx, LLC, RIF III—Irwindale, LLC and XXXXXXX INDUSTRIAL – MADERA INDUSTRIAL, LLC collectively as Borrower, and Bank of America, N.A., as Lender.
3. Credit Agreement, dated as of January 14, 2016, by and among Xxxxxxx Industrial Realty, L.P., as Borrower, Xxxxxxx Industrial Realty Inc., as Parent, PNC Bank, National Association, as Administrative Agent, and the Agents’ counsel confidential other parties party thereto, as amended by that certain First Amendment to Credit Agreement, dated February 23, 2016, and that certain Second Amendment to Credit Agreement, dated June 30, 2016.
4. Second Amended & Restated Credit Agreement, dated February 14, 2017, by and among Xxxxxxx Industrial Realty, L.P., as Borrower, Xxxxxxx Industrial Realty, Inc., as Parent, Citibank, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, and the extent not otherwise publicly availableother parties party thereto.
5. Note Purchase and Guarantee Agreement, dated July 16, 2015, by and among Xxxxxxx Industrial Realty, L.P., as the Issuer, Xxxxxxx Industrial Realty, Inc., as the Parent Guarantor, and each of the purchasers party thereto, as amended by that certain First Amendment to Note Purchase and Guarantee Agreement, dated June 30, 2016.
6. Note Purchase and Guarantee Agreement, dated as of July 13, 2017, by and among Xxxxxxx Industrial Realty L.P., Xxxxxxx Industrial Realty, Inc. and the purchasers named therein.
7. Fourth Amendment to Credit Agreement, dated as of January 16, 2018, among Xxxxxxx Industrial Realty, L.P., Xxxxxxx Industrial Realty Inc., PNC Bank, National Association, as administrative agent and a lender, and the other lenders named therein.
8. Credit Agreement, dated as of May 22, 2018, among Xxxxxxx Industrial Realty, L.P., Xxxxxxx Industrial Realty, Inc., Capital One, National Association, as administrative agent, sole lead arranger and bookrunner and BB&T Capital Markets, as syndication agent.
Appears in 1 contract
Samples: Equity Distribution Agreement (Rexford Industrial Realty, Inc.)
Absence of Fiduciary Relationship. The Each of the Company and the Operating Partnership, severally and not jointly, acknowledges and agrees that:
(a) Each the Sales Agent is acting solely as agent and/or principal in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between among the Company Company, the Operating Partnership or any of its their respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such the Sales Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such the Sales Agent has advised or is advising the Company or the Operating Partnership on other matters, and such the Sales Agent has no obligation to the Company respecting or the Operating Partnership with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities set forth in this Agreement was not established by the Sales Agent;
(c) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(cd) the Sales Agent has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(de) it is aware that the Sales Agent and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Operating Partnership and the Sales Agent has no obligation to disclose such interests and transactions to the Company and the Operating Partnership by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(ef) it waives, to the fullest extent permitted by law, any claims it may have against any the Sales Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no the Sales Agent will shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, the Operating Partnership, employees or creditors of CompanyCompany or the Operating Partnership. [Signature Page Follows.] If the foregoing is in accordance with your understanding of our agreement, other than in respect of such Agent’s obligations under this Agreement please sign and return to keep information provided by the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Sales Agent, the Company and the Operating Partnership in accordance with its terms. Very truly yours, XXXXXXX INDUSTRIAL REALTY, INC. By: /s/ Xxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxxxxxx Title: Co-Chief Executive Officer By: /s/ Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx Title: Co-Chief Executive Officer XXXXXXX INDUSTRIAL REALTY, L.P. By: Xxxxxxx Industrial Realty, Inc., its sole general partner By: /s/ Xxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxxxxxx Title: Co-Chief Executive Officer By: /s/ Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx Title: Co-Chief Executive Officer CONFIRMED AND ACCEPTED, as of the date first above written: X.X. XXXXXX SECURITIES LLC By /s/ Xxxx Xxxxxxxxxx Name: /s/ Xxxx Xxxxxxxxxx Title: Executive Director From: [ ] Cc: [ ] To: [ ] Subject: Equity Distribution—Placement Notice Gentlemen: Pursuant to the terms and subject to the conditions contained in the Equity Distribution Agreement between Xxxxxxx Industrial Realty, Inc. (the “Company”) and X.X. Xxxxxx Securities LLC (the “Sales Agent”) dated June 12, 2017 (the “Agreement”), I hereby request on behalf of the Company that the Sales Agent sell up to [ ] shares of the Company’s common stock, par value $[ ] per share, at a minimum market price of $[ ] per share. The Sales Agent shall be paid compensation equal to 1.5% of the gross proceeds from the sales of Securities pursuant to the terms of this Agreement. None.
1. Term Loan Agreement, dated July 24, 2013, among RIF I—Xxx Xxxxxx, LLC, RIF I—Xxxxx Road, LLC, RIF I—Walnut, LLC, RIF I—Oxnard, LLC, RIF II – Kaiser, LLC and RIF III—Irwindale, LLC, collectively as Borrower, and Bank of America, N.A., as Lender.
2. Modification and Loan Assumption Agreement, dated January 24, 2014, by and among RIF I—Xxx Xxxxxx, LLC, RIF I—Xxxxx Road, LLC, RIF I—Oxnard, LLC, RIF I—Walnut, LLC, XXXXXXX BUSINESS CENTER – FULLERTON, LLC, RIF II – Kaiser, LLC, RIF III—Irwindale, LLC and XXXXXXX INDUSTRIAL – MADERA INDUSTRIAL, LLC collectively as Borrower, and Bank of America, N.A., as Lender.
3. Credit Agreement, dated as of January 14, 2016, by and among Xxxxxxx Industrial Realty, L.P., as Borrower, Xxxxxxx Industrial Realty Inc., as Parent, PNC Bank, National Association, as Administrative Agent, and the Agents’ counsel confidential other parties party thereto, as amended by that certain First Amendment to Credit Agreement, dated February 23, 2016, and that certain Second Amendment to Credit Agreement, dated June 30, 2016.
4. Second Amended & Restated Credit Agreement, dated February 14, 2017, by and among Xxxxxxx Industrial Realty, L.P., as Borrower, Xxxxxxx Industrial Realty, Inc., as Parent, Citibank, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, and the extent not otherwise publicly availableother parties party thereto.
5. Note Purchase and Guarantee Agreement, dated July 16, 2015, by and among Xxxxxxx Industrial Realty, L.P., as the Issuer, Xxxxxxx Industrial Realty, Inc., as the Parent Guarantor, and each of the purchasers party thereto, as amended by that certain First Amendment to Note Purchase and Guarantee Agreement, dated June 30, 2016.
Appears in 1 contract
Samples: Equity Distribution Agreement (Rexford Industrial Realty, Inc.)
Absence of Fiduciary Relationship. The Each of the Company and the Operating Partnership, severally and not jointly, acknowledges and agrees that:
(a) Each the Sales Agent is acting solely as agent and/or principal in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between among the Company Company, the Operating Partnership or any of its their respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such the Sales Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such the Sales Agent has advised or is advising the Company or the Operating Partnership on other matters, and such the Sales Agent has no obligation to the Company respecting or the Operating Partnership with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities set forth in this Agreement was not established by the Sales Agent;
(c) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(cd) the Sales Agent has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(de) it is aware that the Sales Agent and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Operating Partnership and the Sales Agent has no obligation to disclose such interests and transactions to the Company and the Operating Partnership by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(ef) it waives, to the fullest extent permitted by law, any claims it may have against any the Sales Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no the Sales Agent will shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, the Operating Partnership, employees or creditors of CompanyCompany or the Operating Partnership. [Signature Page Follows.] If the foregoing is in accordance with your understanding of our agreement, other than in respect of such Agent’s obligations under this Agreement please sign and return to keep information provided by the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Sales Agent, the Company and the Operating Partnership in accordance with its terms. Very truly yours, XXXXXXX INDUSTRIAL REALTY, INC. By: /s/ Xxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxxxxxx Title: Co-Chief Executive Officer By: /s/ Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx Title: Co-Chief Executive Officer XXXXXXX INDUSTRIAL REALTY, L.P. By: Xxxxxxx Industrial Realty, Inc., its sole general partner By: /s/ Xxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxxxxxx Title: Co-Chief Executive Officer By: /s/ Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx Title: Co-Chief Executive Officer CONFIRMED AND ACCEPTED, as of the date first above written: XXXXXXXXX LLC By: /s/ Xxxxxxx Xxxxxxx Name: Xxxxxxx Xxxxxxx Title: Managing Director - ECM From: [ ] Cc: [ ] To: [ ] Subject: Equity Distribution—Placement Notice Gentlemen: Pursuant to the terms and subject to the conditions contained in the Equity Distribution Agreement between Xxxxxxx Industrial Realty, Inc. (the “Company”) and Xxxxxxxxx LLC (the “Sales Agent”) dated June 12, 2017 (the “Agreement”), I hereby request on behalf of the Company that the Sales Agent sell up to [ ] shares of the Company’s common stock, par value $[ ] per share, at a minimum market price of $[ ] per share. The Sales Agent shall be paid compensation equal to 1.5% of the gross proceeds from the sales of Securities pursuant to the terms of this Agreement. None.
1. Term Loan Agreement, dated July 24, 2013, among RIF I—Xxx Xxxxxx, LLC, RIF I—Xxxxx Road, LLC, RIF I—Walnut, LLC, RIF I—Oxnard, LLC, RIF II – Kaiser, LLC and RIF III—Irwindale, LLC, collectively as Borrower, and Bank of America, N.A., as Lender.
2. Modification and Loan Assumption Agreement, dated January 24, 2014, by and among RIF I—Xxx Xxxxxx, LLC, RIF I—Xxxxx Road, LLC, RIF I—Oxnard, LLC, RIF I—Walnut, LLC, XXXXXXX BUSINESS CENTER – FULLERTON, LLC, RIF II – Kaiser, LLC, RIF III—Irwindale, LLC and XXXXXXX INDUSTRIAL – MADERA INDUSTRIAL, LLC collectively as Borrower, and Bank of America, N.A., as Lender.
3. Credit Agreement, dated as of January 14, 2016, by and among Xxxxxxx Industrial Realty, L.P., as Borrower, Xxxxxxx Industrial Realty Inc., as Parent, PNC Bank, National Association, as Administrative Agent, and the Agents’ counsel confidential other parties party thereto, as amended by that certain First Amendment to Credit Agreement, dated February 23, 2016, and that certain Second Amendment to Credit Agreement, dated June 30, 2016.
4. Second Amended & Restated Credit Agreement, dated February 14, 2017, by and among Xxxxxxx Industrial Realty, L.P., as Borrower, Xxxxxxx Industrial Realty, Inc., as Parent, Citibank, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, and the extent not otherwise publicly availableother parties party thereto.
5. Note Purchase and Guarantee Agreement, dated July 16, 2015, by and among Xxxxxxx Industrial Realty, L.P., as the Issuer, Xxxxxxx Industrial Realty, Inc., as the Parent Guarantor, and each of the purchasers party thereto, as amended by that certain First Amendment to Note Purchase and Guarantee Agreement, dated June 30, 2016.
Appears in 1 contract
Samples: Equity Distribution Agreement (Rexford Industrial Realty, Inc.)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each The Placement Agent is acting solely as agent and/or principal in connection with the public offering of the Placement Shares and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such the Placement Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such the Placement Agent has advised or is advising the Company on other matters, and such the Placement Agent has no obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Shares was not established by the Placement Agent; it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the Placement Agent has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware that the Placement Agent and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Placement Agent has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(e) it waives, to the fullest extent permitted by law, any claims it may have against any the Placement Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no the Placement Agent will shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company. If the foregoing is in accordance with your understanding of our agreement, other than in respect of such Agent’s obligations under this Agreement please sign and return to keep information provided by the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement by and among the Placement Agent, the Company in accordance with its terms. Very truly yours, By: /s/ Xxxxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxxx Title: Executive Vice President, Chief Financial Officer and Treasurer CONFIRMED AND ACCEPTED, as of the date first above written: By /s/ Xxxxxxx XxXxxxxx From: [ ] Cc: [ ] To: [ ] Subject: Equity Distribution—Placement Notice Gentlemen: Pursuant to the Agent’s terms and the Agents’ counsel confidential subject to the extent not otherwise publicly available.conditions contained in the Equity Distribution Agreement between Arlington Asset Investment Corp. (the “Company”) and FBR Capital Markets & Co. (the “Placement Agent”) dated February 22, 2017 (the “Agreement”), I hereby request on behalf of the Company that the Placement Agent sell up to [●] shares of the Company’s Class A common stock, par value $0.01 per share, at a minimum market price of $[ ] per share. [ADDITIONAL SALES PARAMETERS MAY BE ADDED, SUCH AS THE MAXIMUM AGGREGATE OFFERING PRICE, THE TIME PERIOD IN WHICH SALES ARE REQUESTED TO BE MADE, SPECIFIC DATES THE SHARES MAY NOT BE SOLD ON, THE MANNER IN WHICH SALES ARE TO BE MADE BY THE PLACEMENT AGENT, AND/OR THE CAPACITY IN WHICH THE PLACEMENT AGENT MAY ACT IN SELLING SHARES (AS PRINCIPAL, AGENT, OR BOTH)] Xxxxx Xxxxxx, Senior Managing Director, Investment Banking xxxxxxx@xxx.xxx Xxxxxx Xxxxxxx, Manaing Director, Investment Banking xxxxxxxxxx@xxx.xxx Xxxxxxx XxXxxxxx, Senior Managing Director, Co-Head of Capital Markets xxxxxxxxx@xxx.xxx Xxxxx Xxxxxxxx, Senior Vice President, Head of Capital Markets Trading xxxxxxxxx@xxx.xxx Xxxx Xxxxxxx, Senior Vice President, Capital Markets Trading xxxxxxxx@xxx.xxx Xxxxx Xxxxxxxxx, Senior Vice President, Capital Markets Trading xxxxxxxxxx@xxx.xxx With copies to: xxxxxxx@xxx.xxx and xxxxxxxx@xxx.xxx
Appears in 1 contract
Samples: Equity Distribution Agreement (Arlington Asset Investment Corp.)
Absence of Fiduciary Relationship. The Company Each of the Company, the Adviser and the Administrator, severally and not jointly, acknowledges and agrees that:
(a) Each of the Placement Agent is acting solely as agent and/or principal in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such Agenteither of the Placement Agents, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such Agent either of the Placement Agents has advised or is advising the Company on other matters, and such neither Placement Agent has no obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities was not established by the Placement Agents;
(c) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(cd) the neither Placement Agent has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has the Placement Agents have consulted its their own legal, accounting, regulatory and tax advisors advisers to the extent it has they have deemed appropriate;
(de) it is aware that the Agent Placement Agents and its their respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the neither Placement Agent has no an obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(ef) it waives, to the fullest extent permitted by law, any claims it may have against any Agent either of the Placement Agents for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no Agent will neither of the Placement Agents shall have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly available.
Appears in 1 contract
Samples: Equity Distribution Agreement (GOLUB CAPITAL BDC, Inc.)
Absence of Fiduciary Relationship. The Company and each of the Selling Stockholders acknowledges and agrees that:
: (a) Each Agent is acting the Representatives have been retained solely to act as agent underwriters in connection with the public offering sale of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactionsthat no fiduciary, and no fiduciary advisory or advisory agency relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on Selling Stockholder and the one hand, and such Agent, on the other hand, Representatives has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such Agent has the Representatives have advised or is are advising the Company or any Selling Stockholder on other matters, ; (b) the price and such Agent has no obligation to other terms of the Company respecting the transactions contemplated by this Agreement except the obligations expressly Securities set forth in this Agreement;
(b) it Agreement were established by the Company and each of the Selling Stockholders following discussions and arms-length negotiations with the Representatives and the Company is capable of evaluating and understanding, understanding and understands and accepts, accepts the terms, risks and conditions of the transactions contemplated by this Agreement;
; (c) the Agent has not provided any legal, accounting, regulatory or tax advice respecting the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware been advised that the Agent Representatives and its their affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Agent has Selling Stockholders and that the Representatives have no obligation to disclose such interests interest and transactions to the Company or any Selling Stockholder by virtue of any fiduciary, advisory or agency relationship or otherwiserelationship; provided (d) it has been advised that the Agent hereby agrees not to engage Representatives are acting, in any such transaction that would cause its interests to be in direct conflict with the best interests respect of the Companytransactions contemplated by this Agreement, solely for the benefit of the Underwriters, and not on behalf of the Company or any Selling Stockholder; and
(e) it waivesit, he or she waives to the fullest extent permitted by law, any claims it it, he or she may have against any Agent the Underwriters for breach of fiduciary duty or alleged breach of fiduciary duty in connection with respect of any of the sale of Placement Shares under transactions contemplated by this Agreement and agrees that the Underwriters shall have no Agent will have any liability (whether direct or indirect, in contract, tort or otherwise) to it the Company or any Selling Stockholder in respect of such a fiduciary duty claim or to any Person asserting a fiduciary duty claim on its behalf of or in right of it or the Company, including stockholders, employees or creditors of the Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly availableor any Selling Stockholder.
Appears in 1 contract
Samples: Underwriting Agreement (Airgain Inc)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each The Placement Agent is acting solely as agent and/or principal in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such the Placement Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such the Placement Agent has advised or is advising the Company on other matters, and such the Placement Agent has no obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities was not established by the Placement Agent; it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the Placement Agent has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware that the Placement Agent and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Placement Agent has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(e) it waives, to the fullest extent permitted by law, any claims it may have against any the Placement Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no the Placement Agent will shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company. [Signature Page Follows] If the foregoing is in accordance with your understanding of our agreement, other than please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement by and between the Placement Agent and the Company in accordance with its terms. Very truly yours, By: /s/ Xxxxxx X. Xxxxx Name: Xxxxxx X. Xxxxx Title: Chief Executive Officer CONFIRMED AND ACCEPTED, as of the date first above written: By: /s/ Xxxxxx Kaplan____________________ Name: Xxxxxx Xxxxxx Title: Head of Capital Markets From: [•] Cc: [•] To: [•] Date: [•] Subject: Equity Distribution — Placement Notice Ladies and Gentlemen: Pursuant to the terms and subject to the conditions contained in the Equity Distribution Agreement between New York Mortgage Trust, Inc. (the “Company”) and Ladenburg Xxxxxxxx & Co. Inc. (the “Placement Agent”), dated August 25, 2016 (the “Agreement”), I hereby request on behalf of the Company that the Placement Agent sell up to [•] shares of the Company’s [Common Stock] [Preferred Stock], par value $0.01 per share, at a minimum market price of $[•] per share, and, with respect to any Preferred Stock, at the Maximum Price, as defined in Section 3 of the Agreement, beginning on [the date hereof] and ending on [insert end date] [such Agent’s obligations under this Agreement and to keep information provided date in the future as notified in writing (including by email) by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly available.Company]. [ADDITIONAL SALES PARAMETERS MAY BE ADDED, SUCH AS THE MAXIMUM AGGREGATE OFFERING PRICE, SPECIFIC DATES THE SHARES MAY NOT BE SOLD ON, THE MAXIMUM NUMBER OF SHARES THAT MAY BE SOLD ON ANY SINGLE DAY, THE MANNER IN WHICH SALES ARE TO BE MADE BY THE PLACEMENT AGENT, AND/OR THE CAPACITY IN WHICH THE PLACEMENT AGENT MAY ACT IN SELLING SHARES (AS PRINCIPAL, AGENT, OR BOTH)]
Appears in 1 contract
Samples: Equity Distribution Agreement (New York Mortgage Trust Inc)
Absence of Fiduciary Relationship. The Company Each of the Transaction Entities, severally and not jointly, acknowledges and agrees that:
(a) Each Agent Citigroup is acting solely as agent (or as principal pursuant to a separate underwriting or similar agreement described in Section 1) in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such AgentCitigroup, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such Agent Citigroup has advised or is advising the Company on other matters, and such Agent Citigroup has no obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the Agent Citigroup has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware that the Agent Citigroup and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Agent Citigroup has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(e) it waives, to the fullest extent permitted by law, any claims it may have against any Agent Citigroup for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares Securities under this Agreement and agrees that no Agent will Citigroup shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly available.
Appears in 1 contract
Samples: Equity Distribution Agreement (Kite Realty Group Trust)
Absence of Fiduciary Relationship. The Each of the Company and the Operating Partnership, severally and not jointly, acknowledges and agrees that:
(a) Each the Sales Agent is acting solely as agent and/or principal in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between among the Company Company, the Operating Partnership or any of its their respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such the Sales Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such the Sales Agent has advised or is advising the Company or the Operating Partnership on other matters, and such the Sales Agent has no obligation to the Company respecting or the Operating Partnership with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities set forth in this Agreement was not established by the Sales Agent;
(c) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(cd) the Sales Agent has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(de) it is aware that the Sales Agent and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Operating Partnership and the Sales Agent has no obligation to disclose such interests and transactions to the Company and the Operating Partnership by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(ef) it waives, to the fullest extent permitted by law, any claims it may have against any the Sales Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no the Sales Agent will shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, the Operating Partnership, employees or creditors of CompanyCompany or the Operating Partnership. [Signature Page Follows.] If the foregoing is in accordance with your understanding of our agreement, other than in respect of such Agent’s obligations under this Agreement please sign and return to keep information provided by the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Sales Agent, the Company and the Operating Partnership in accordance with its terms. Very truly yours, XXXXXXX INDUSTRIAL REALTY, INC. By: /s/ Xxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxxxxxx Title: Co-Chief Executive Officer By: /s/ Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx Title: Co-Chief Executive Officer XXXXXXX INDUSTRIAL REALTY, L.P. By: Xxxxxxx Industrial Realty, Inc., its sole general partner By: /s/ Xxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxxxxxx Title: Co-Chief Executive Officer By: /s/ Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx Title: Co-Chief Executive Officer CONFIRMED AND ACCEPTED, as of the date first above written: X.X. XXXXXX SECURITIES LLC By /s/ Xxxx Xxxxxxxxxx Name: /s/ Xxxx Xxxxxxxxxx Title: Executive Director From: [ ] Cc: [` ] To: [ ] Subject: Equity Distribution—Placement Notice Gentlemen: Pursuant to the terms and subject to the conditions contained in the Equity Distribution Agreement between Xxxxxxx Industrial Realty, Inc. (the “Company”) and X.X. Xxxxxx Securities LLC (the “Sales Agent”) dated September 21, 2017 (the “Agreement”), I hereby request on behalf of the Company that the Sales Agent sell up to [__] shares of the Company’s common stock, par value $[__] per share, at a minimum market price of $[__] per share. The Sales Agent shall be paid compensation equal to 1.5% of the gross proceeds from the sales of Securities pursuant to the terms of this Agreement. None.
1. Term Loan Agreement, dated July 24, 2013, among RIF I—Xxx Xxxxxx, LLC, RIF I—Xxxxx Road, LLC, RIF I—Walnut, LLC, RIF I—Oxnard, LLC, RIF II – Kaiser, LLC and RIF III—Irwindale, LLC, collectively as Borrower, and Bank of America, N.A., as Lender.
2. Modification and Loan Assumption Agreement, dated January 24, 2014, by and among RIF I—Xxx Xxxxxx, LLC, RIF I—Xxxxx Road, LLC, RIF I—Oxnard, LLC, RIF I—Walnut, LLC, XXXXXXX BUSINESS CENTER – FULLERTON, LLC, RIF II – Kaiser, LLC, RIF III—Irwindale, LLC and XXXXXXX INDUSTRIAL – MADERA INDUSTRIAL, LLC collectively as Borrower, and Bank of America, N.A., as Lender.
3. Credit Agreement, dated as of January 14, 2016, by and among Xxxxxxx Industrial Realty, L.P., as Borrower, Xxxxxxx Industrial Realty Inc., as Parent, PNC Bank, National Association, as Administrative Agent, and the Agents’ counsel confidential other parties party thereto, as amended by that certain First Amendment to Credit Agreement, dated February 23, 2016, and that certain Second Amendment to Credit Agreement, dated June 30, 2016.
4. Second Amended & Restated Credit Agreement, dated February 14, 2017, by and among Xxxxxxx Industrial Realty, L.P., as Borrower, Xxxxxxx Industrial Realty, Inc., as Parent, Citibank, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, and the extent not otherwise publicly availableother parties party thereto.
5. Note Purchase and Guarantee Agreement, dated July 16, 2015, by and among Xxxxxxx Industrial Realty, L.P., as the Issuer, Xxxxxxx Industrial Realty, Inc., as the Parent Guarantor, and each of the purchasers party thereto, as amended by that certain First Amendment to Note Purchase and Guarantee Agreement, dated June 30, 2016.
6. Note Purchase and Guarantee Agreement, dated as of July 13, 2017, by and among Xxxxxxx Industrial Realty L.P., Xxxxxxx Industrial Realty, Inc. and the purchasers named therein.
Appears in 1 contract
Samples: Equity Distribution Agreement (Rexford Industrial Realty, Inc.)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each The Placement Agent is acting solely as agent and/or principal in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such the Placement Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such the Placement Agent has advised or is advising the Company on other matters, and such the Placement Agent has no obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities was not established by the Placement Agent; it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the Placement Agent has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware that the Placement Agent and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Placement Agent has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(e) it waives, to the fullest extent permitted by law, any claims it may have against any the Placement Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no the Placement Agent will shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company. If the foregoing is in accordance with your understanding of our agreement, other than in respect of such Agent’s obligations under this Agreement please sign and return to keep information provided by the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement by and among the Placement Agent, the Company, the Operating Partnership and the Advisor in accordance with its terms. Very truly yours, By: /s/ Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx Title: Chief Operating Officer By: Ashford OP General Partner LLC, its sole general partner By: Ashford Hospitality Trust, Inc., its sole member By: /s/ Xxxxx X. Xxxxxx Xxxxx X. Xxxxxx, Vice President By: /s/ Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx Title: Chief Operating Officer CONFIRMED AND ACCEPTED, as of the date first above written: By: /s/ Xxxx Xxxxxxxxx Xxxx Xxxxxxxxx, Director of Investment Banking From: [ ] Cc: [ ] To: [ ] Subject: Equity Distribution—Placement Notice Gentlemen: Pursuant to the Agent’s terms and the Agents’ counsel confidential subject to the extent not otherwise publicly availableconditions contained in the Equity Distribution Agreement among Ashford Hospitality Trust, Inc. (the “Company”), Ashford Hospitality Limited Partnership, Ashford Hospitality Advisors LLC (the “Advisor”) and JMP Securities LLC (the “Placement Agent”) dated May 15, 2015 (the “Agreement”), I hereby request on behalf of the Company that the Placement Agent sell up to [ ] shares of the Company’s common stock, par value $0.01 per share, at a minimum market price of $[ ] per share. [ADDITIONAL SALES PARAMETERS MAY BE ADDED, SUCH AS THE MAXIMUM AGGREGATE OFFERING PRICE, THE TIME PERIOD IN WHICH SALES ARE REQUESTED TO BE MADE, SPECIFIC DATES THE SHARES MAY NOT BE SOLD ON, THE MANNER IN WHICH SALES ARE TO BE MADE BY THE PLACEMENT AGENT, AND/OR THE CAPACITY IN WHICH THE PLACEMENT AGENT MAY ACT IN SELLING SHARES (AS PRINCIPAL, AGENT, OR BOTH). THE COMPANY MAY DIRECT THE PLACEMENT AGENT TO SELL BLOCKS OF STOCK “IN SIZE.”] Xxxx Xxxxxxxxx, Director of Investment Banking Xxxxxxx Xxxxx, Managing Director, Investment Banking Xxxxxx Xxxxxxxx, Vice President, Trading Xxxxx Xxxxxxx, General Counsel Xxx Xxxxxxxx, Chief Compliance Officer
Appears in 1 contract
Samples: Equity Distribution Agreement (Ashford Hospitality Trust Inc)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each Agent is The Agents are acting solely as agent and/or principal in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between among the Company or any of its respective affiliates, stockholders shareholders (or other equity holders), creditors or employees or any other party, on the one hand, and such Agentthe Agents, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such Agent has the Agents have advised or is are advising the Company on other matters, and such Agent has the Agents have no obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities set forth in this Agreement was not established by the Agents;
(c) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(cd) the Agent has Agents have not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(de) it is aware that the Agent Agents and its their respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Agent has Agents have no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(ef) it waives, to the fullest extent permitted by law, any claims it may have against any Agent the Agents for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no Agent will the Agents shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company. If the foregoing is in accordance with your understanding of our agreement, other than please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Agents, the Company and the Operating Partnership in respect accordance with its terms. Very truly yours, By: /s/ J. Xxxxxxx Xxxxxxxx Name: J. Xxxxxxx Xxxxxxxx Title: President and Chief Executive Officer By: Condor Hospitality REIT Trust, its general partner By: /s/ J. Xxxxxxx Xxxxxxxx Name: J. Xxxxxxx Xxxxxxxx Title: Chief Executive Officer CONFIRMED AND ACCEPTED, as of the date first above written: By /s/ Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx Title: Managing Director CONFIRMED AND ACCEPTED, as of the date first above written: By /s/ Xxxxxxxx Xx Name: Xxxxxxxx Xx Title: Managing Director From: [ ] Cc: [ ] To: [ ] Subject: Equity Distribution—Placement Notice Ladies and Gentlemen: Pursuant to the terms and subject to the conditions contained in the Equity Distribution Agreement among Condor Hospitality Trust, Inc. (the “Company”) and Condor Hospitality Limited Partnership and KeyBanc Capital Markets Inc. and BMO Capital Markets Corp. (the “Agents”), dated [ ], 2017 (the “Agreement”), I hereby request on behalf of the Company that Agents sell up to [●][or $[●] in aggregate offering price] of shares of the Company’s common stock, $0.01 par value per share, at a minimum market price of $[●] per share. The Company shall pay the Designated Agent compensation equal to [●]% of the gross sales price of the Placement Securities set forth in this Placement Notice. Capitalized terms used but not defined herein shall have the meanings set forth in the Agreement. The Company hereby confirms that, as of the date of this Placement Notice, neither the Prospectus, nor any Issuer Free Writing Prospectus, when taken together with the Prospectus, includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. [ADDITIONAL SALES PARAMETERS MAY BE ADDED, SUCH AS THE TIME PERIOD IN WHICH SALES ARE REQUESTED TO BE MADE, SPECIFIC DATES THE SHARES MAY NOT BE SOLD ON, THE MANNER IN WHICH SALES ARE TO BE MADE BY THE AGENTS, AND/OR THE CAPACITY IN WHICH AGENTS MAY ACT IN SELLING SHARES (AS PRINCIPAL, AGENT, OR BOTH).] [ ] Email: [ ] Email: [ ] Email: [ ] Email: [ ] Email: [ ] Email: [ ] Email: [ ] Email: [ ] Email: The Agents shall be paid compensation equal to 2.0% of the gross proceeds from the sale of Placement Securities pursuant to the terms of this Agreement. I, [NAME], [TITLE] of Condor Hospitality Trust, Inc., a Maryland corporation (the “Company”), and [TITLE] of Condor Hospitality REIT Trust, the general partner of Condor Hospitality Limited Partnership, a Virginia limited partnership (the “Operating Partnership”), do hereby deliver this Officer’s Certificate pursuant to Section 7(n) of the Equity Distribution Agreement, dated [_], 2017 (the “Agreement”), by and among the Company and the Operating Partnership and KeyBanc Capital Markets Inc. and BMO Capital Markets Corp. (the “Agents”), under which the Company may issue and sell through the Agents, acting as agent and/or principal, shares of the Company’s common stock, $0.01 par value per share, having an aggregate offering price of up to $50,000,000, and do hereby confirm that:
(i) Each signer of this certificate has carefully examined the Registration Statement, the Prospectus (including any documents filed under the Exchange Act and deemed to be incorporated by reference into the Prospectus) and each Permitted Free Writing Prospectus, if any;
(ii) As of the date hereof, neither the Registration Statement, the Prospectus nor any Permitted Free Writing Prospectus contained any untrue statement of a material fact or omitted to state any material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading;
(iii) Each of the representations and warranties of the Company and the Operating Partnership, as applicable, contained in the Agreement are, as of the date hereof, true and correct, except for those representation and warranties of the Company and the Operating Partnership, as applicable, that speak solely as of a specific date, which are true and correct as of such Agent’s obligations under this date; and
(iv) Each of the covenants and agreements required by the Agreement and to keep information provided be performed by the Company and the Operating Partnership, as applicable, on or prior to the Agent’s date hereof have been duly, timely and fully performed in all material respects and each condition herein required to be complied with by the Company and the Agents’ counsel confidential Operating Partnership, as applicable, on or prior to the extent date hereof has been duly, timely and fully complied with in all material respects. Capitalized terms used but not otherwise publicly availabledefined herein shall have the meanings ascribed to them in the Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (Condor Hospitality Trust, Inc.)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each Agent Barclays is acting solely as agent (or as principal pursuant to a separate underwriting or similar agreement described in Section 1) in connection with the public offering of the Placement Shares and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such AgentBarclays, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such Agent Barclays has advised or is advising the Company on other matters, and such Agent Barclays has no obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the Agent Barclays has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware that the Agent Barclays and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Agent Barclays has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that ;
(e) the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests price of the CompanyShares sold pursuant to this Agreement will not be established by Barclays; and
(ef) it waives, to the fullest extent permitted by law, any claims it may have against any Agent Barclays for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no Agent will Barclays shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly available.
Appears in 1 contract
Samples: Equity Distribution Agreement (Essex Property Trust Inc)
Absence of Fiduciary Relationship. The Each of the Company and the Operating Partnership, severally and not jointly, acknowledges and agrees that:
(a) Each the Sales Agent is acting solely as agent and/or principal in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between among the Company Company, the Operating Partnership or any of its their respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such the Sales Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such the Sales Agent has advised or is advising the Company or the Operating Partnership on other matters, and such the Sales Agent has no obligation to the Company respecting or the Operating Partnership with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities set forth in this Agreement was not established by the Sales Agent;
(c) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(cd) the Sales Agent has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(de) it is aware that the Sales Agent and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Operating Partnership and the Sales Agent has no obligation to disclose such interests and transactions to the Company and the Operating Partnership by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(ef) it waives, to the fullest extent permitted by law, any claims it may have against any the Sales Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no the Sales Agent will shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, the Operating Partnership, employees or creditors of CompanyCompany or the Operating Partnership. [Signature Page Follows.] If the foregoing is in accordance with your understanding of our agreement, other than in respect of such Agent’s obligations under this Agreement please sign and return to keep information provided by the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Sales Agent, the Company and the Operating Partnership in accordance with its terms. Very truly yours, XXXXXXX INDUSTRIAL REALTY, INC. By: /s/ Xxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxxxxxx Title: Co-Chief Executive Officer By: /s/ Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx Title: Co-Chief Executive Officer XXXXXXX INDUSTRIAL REALTY, L.P. By: Xxxxxxx Industrial Realty, Inc., its sole general partner By: /s/ Xxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxxxxxx Title: Co-Chief Executive Officer By: /s/ Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx Title: Co-Chief Executive Officer [Signature Page to Equity Distribution Agreement] CONFIRMED AND ACCEPTED, as of the date first above written: CITIGROUP GLOBAL MARKETS INC. By: /s/ Xxxx Xxxxx Name: Xxxx Xxxxx Title: Vice President [Signature Page to Equity Distribution Agreement] From: [ ] Cc: [` ] To: [ ] Subject: Equity Distribution—Placement Notice Gentlemen: Pursuant to the terms and subject to the conditions contained in the Equity Distribution Agreement between Xxxxxxx Industrial Realty, Inc. (the “Company”) and Citigroup Global Markets Inc. (the “Sales Agent”) dated September 21, 2017 (the “Agreement”), I hereby request on behalf of the Company that the Sales Agent sell up to [__] shares of the Company’s common stock, par value $[__] per share, at a minimum market price of $[__] per share. The Sales Agent shall be paid compensation equal to 1.5% of the gross proceeds from the sales of Securities pursuant to the terms of this Agreement. None.
1. Term Loan Agreement, dated July 24, 2013, among RIF I—Xxx Xxxxxx, LLC, RIF I—Xxxxx Road, LLC, RIF I—Walnut, LLC, RIF I—Oxnard, LLC, RIF II – Kaiser, LLC and RIF III—Irwindale, LLC, collectively as Borrower, and Bank of America, N.A., as Lender.
2. Modification and Loan Assumption Agreement, dated January 24, 2014, by and among RIF I—Xxx Xxxxxx, LLC, RIF I—Xxxxx Road, LLC, RIF I—Oxnard, LLC, RIF I—Walnut, LLC, XXXXXXX BUSINESS CENTER – FULLERTON, LLC, RIF II – Kaiser, LLC, RIF III—Irwindale, LLC and XXXXXXX INDUSTRIAL – MADERA INDUSTRIAL, LLC collectively as Borrower, and Bank of America, N.A., as Lender.
3. Credit Agreement, dated as of January 14, 2016, by and among Xxxxxxx Industrial Realty, L.P., as Borrower, Xxxxxxx Industrial Realty Inc., as Parent, PNC Bank, National Association, as Administrative Agent, and the Agents’ counsel confidential other parties party thereto, as amended by that certain First Amendment to Credit Agreement, dated February 23, 2016, and that certain Second Amendment to Credit Agreement, dated June 30, 2016.
4. Second Amended & Restated Credit Agreement, dated February 14, 2017, by and among Xxxxxxx Industrial Realty, L.P., as Borrower, Xxxxxxx Industrial Realty, Inc., as Parent, Citibank, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, and the extent not otherwise publicly availableother parties party thereto.
5. Note Purchase and Guarantee Agreement, dated July 16, 2015, by and among Xxxxxxx Industrial Realty, L.P., as the Issuer, Xxxxxxx Industrial Realty, Inc., as the Parent Guarantor, and each of the purchasers party thereto, as amended by that certain First Amendment to Note Purchase and Guarantee Agreement, dated June 30, 2016.
6. Note Purchase and Guarantee Agreement, dated as of July 13, 2017, by and among Xxxxxxx Industrial Realty L.P., Xxxxxxx Industrial Realty, Inc. and the purchasers named therein.
Appears in 1 contract
Samples: Equity Distribution Agreement (Rexford Industrial Realty, Inc.)
Absence of Fiduciary Relationship. The Company Each of the Transaction Entities, severally and not jointly, acknowledges and agrees that:
(a) Each Agent the Manager is acting solely as agent (or as principal pursuant to a separate underwriting or similar agreement described in Section 1) in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such Agentthe Manager, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such Agent the Manager has advised or is advising the Company on other matters, and such Agent the Manager has no obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the Agent Manager has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware that the Agent Manager and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Agent Manager has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(e) it waives, to the fullest extent permitted by law, any claims it may have against any Agent the Manager for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares Securities under this Agreement and agrees that no Agent will the Manager shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company. If the foregoing is in accordance with your understanding of our agreement, other than in respect of such Agent’s obligations under this Agreement please sign and return to keep information provided by the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement between the Manager, the Company and the Operating Partnership in accordance with its terms. Very truly yours, BIOMED REALTY TRUST, INC. By /s/ XXXX X. LUBUSHKIN Name: Xxxx X. Lubushkin Title: Chief Financial Officer BIOMED REALTY, L.P. By /s/ XXXX X. LUBUSHKIN Name: Xxxx X. Lubushkin Title: Chief Financial Officer CONFIRMED AND ACCEPTED, as of the date first above written: XXXXXXX XXXXX & ASSOCIATES, INC. By /s/ Vivek Seth From: [ ] Cc: [ ] To: [ ] Subject: Equity Distribution—Placement Notice Gentlemen: Pursuant to the Agent’s terms and the Agents’ counsel confidential subject to the extent not otherwise publicly availableconditions contained in the Amended and Restated Equity Distribution Agreement between BioMed Realty Trust, Inc. (the “Company”), BioMed Realty, L.P. (the “Operating Partnership”) and Xxxxxxx Xxxxx and Associates, Inc. (the “Manager”) dated August 31, 2012 (the “Agreement”), I hereby request on behalf of the Company that the Manager sell up to [ ] of the Company’s common stock, par value $0.01 per share, at a minimum market price of $ per share. [ADDITIONAL SALES PARAMETERS TO BE ADDED, SUCH AS THE TIME PERIOD IN WHICH SALES ARE REQUESTED TO BE MADE, SPECIFIC DATES THE SHARES MAY NOT BE SOLD ON, AND THE MANNER IN WHICH SALES ARE TO BE MADE BY THE MANAGER] Xxxx X. Gold, Chairman and Chief Executive Officer R. Xxxx Xxxxxxx, Xx., President and Chief Operating Officer Vivek Seth(xxxxx.xxxx@xxxxxxxxxxxx.xxx) Xxxx Xxxxxxx (xxxx.xxxxxxx@xxxxxxxxxxxx.xxx) Xxxxx Xxxxx (xxxxx.xxxxx@xxxxxxxxxxxx.xxx) Xxxx Xxxxx (xxxx.xxxxx@xxxxxxxxxxxx.xxx) Xxxx Xxxxxxxxx (xxxx.xxxxxxxxx@xxxxxxxxxxxx.xxx) Xxxx Xxxxxxx (xxxx.xxxxxxx@xxxxxxxxxxxx.xxx) Xxxx Xxxxxx (xxxx.xxxxxx@xxxxxxxxxxxx.xxx)
Appears in 1 contract
Absence of Fiduciary Relationship. The Company Each of the Transaction Entities, severally and not jointly, acknowledges and agrees that:
(a) Each Agent Xxxxx is acting solely as agent (or as principal pursuant to a separate underwriting or similar agreement described in Section 1) in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such AgentXxxxx, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such Agent Xxxxx has advised or is advising the Company on other matters, and such Agent Xxxxx has no obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the Agent Xxxxx has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware that the Agent Xxxxx and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Agent Xxxxx has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(e) it waives, to the fullest extent permitted by law, any claims it may have against any Agent Xxxxx for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares Securities under this Agreement and agrees that no Agent will Xxxxx shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company. If the foregoing is in accordance with your understanding of our agreement, other than in respect of such Agent’s obligations under this Agreement please sign and return to keep information provided by the Company to a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement between Xxxxx, the Agent’s Company and the Agents’ counsel confidential to Operating Partnership in accordance with its terms. Very truly yours, KITE REALTY GROUP TRUST By: /s/ Xxxxxx X. Xxxx Name: Xxxxxx X. Xxxx Title: Executive Vice President and Chief Financial Officer KITE REALTY GROUP, L.P. By: Kite Realty Group Trust, its general partner By: /s/ Xxxxxx X. Xxxx Name: Xxxxxx X. Xxxx Title: Executive Vice President and Chief Financial Officer CONFIRMED AND ACCEPTED, as of the extent not otherwise publicly available.date first above written: XXXXX FARGO SECURITIES, LLC By: /s/ Xxx Xxx Name: Xxx Xxx Title: Vice President
Appears in 1 contract
Samples: Equity Distribution Agreement (Kite Realty Group Trust)
Absence of Fiduciary Relationship. The Company Each of the Transaction Entities, severally and not jointly, acknowledges and agrees that:
(a) Each Placement Agent is acting solely as agent and/or principal in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company Transaction Entities or any of its their respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such Placement Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such Placement Agent has advised or is advising the Company Transaction Entities on other matters, and such Placement Agent has no obligation to the Company respecting Transaction Entities with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities set forth in this Agreement was not established by Placement Agent;
(c) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(cd) the Placement Agent has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(de) it is aware that the Placement Agent and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company Transaction Entities and the Placement Agent has no obligation to disclose such interests and transactions to the Company Transaction Entities by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(ef) it waives, to the fullest extent permitted by law, any claims it may have against any Placement Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no Placement Agent will shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, Transaction Entities or employees or creditors of the Transaction Entities. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement between Placement Agent and the Company in accordance with its terms. Very truly yours, By /s/ Xxxxxx Xxxx Name: Xxxxxx Xxxx Title: Chairman, President and Chief Executive Officer By: American Assets Trust, Inc., its general partner By /s/ Xxxxxx Xxxx Name: Xxxxxx Xxxx Title: Chairman, President and Chief Executive Officer CONFIRMED AND ACCEPTED, as of the date first above written: By /s/ Mizuho Securities USA LLC From: [ ] Cc: [ ] To: [ ] Subject: Equity Distribution—Placement Notice Ladies and Gentlemen: Pursuant to the terms and subject to the conditions contained in the Equity Distribution Agreement among American Assets Trust, Inc. (the “Company”), American Assets Trust, L.P. and Placement Agent (“Placement Agent”) dated May 27, 2015, as amended and restated on March 2, 2018, I hereby request on behalf of the Company that Placement Agent sell up to [__] of the Company’s common stock, par value $0.01 per share, at a minimum market price of $_______ per share. [ADDITIONAL SALES PARAMETERS MAY BE ADDED, SUCH AS THE TIME PERIOD IN WHICH SALES ARE REQUESTED TO BE MADE, SPECIFIC DATES ON WHICH THE SHARES MAY NOT BE SOLD, THE MANNER IN WHICH SALES ARE TO BE MADE BY [PLACEMENT AGENT], AND/OR THE CAPACITY IN WHICH [PLACEMENT AGENT] MAY ACT IN SELLING SHARES (AS PRINCIPAL, AGENT, OR BOTH)] Equity Capital Markets Desk Tel: (000) 000-0000 XX-XXX@xx.xxxxxx-xx.xxx Xxxxxx Xxxx Tel: (000) 000-0000 Email: xxxxx@xxxxxxxxxxxxxx.xxx Xxxxxx Xxxxxx Tel: (000) 000-0000 Email: xxxxxxx@xxxxxxxxxxxxxx.xxx Xxxx Xxxx Tel: (000) 000-0000 Email: xxxxx@xxxxxxxxxxxxxx.xxx Placement Agent shall be paid compensation to be agreed upon of up to 2% of the gross proceeds from the sales of Securities pursuant to the terms of this Agreement. The undersigned, Xxxxxx X. Xxxx and Xxxxxx X. Xxxxxx, the duly qualified and elected President and Chief Executive Officer and Executive Vice President and Chief Financial Officer, respectively, of American Assets Trust, Inc. (“Company”), a Maryland corporation, do hereby certify in such capacities and on behalf of the Company, other than in respect its own capacity and as the general partner of such American Assets Trust, L.P. (the “Operating Partnership” and, together with the Company, the “Transaction Entities”), pursuant to Section 7(o) of the Equity Distribution Agreements, each dated May 27, 2015, as amended and restated on March 2, 2018, by and among the Company, the Operating Partnership and each of RBC Capital Markets, LLC, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Mizuho Securities USA LLC, Xxxxxx Xxxxxxx & Co. LLC and Xxxxx Fargo Securities, LLC (each, a “Placement Agent’s obligations under this Agreement and to keep information provided by the Company ”), that to the Agent’s knowledge of the undersigned:
(i) The representations and warranties of the Agents’ counsel confidential Transaction Entities in Section 5 of the Agreements (A) to the extent such representations and warranties are subject to qualifications and exceptions contained therein relating to materiality or Material Adverse Effect, are true and correct on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof, except for those representations and warranties that speak solely as of a specific date and which were true and correct as of such date, and (B) to the extent such representations and warranties are not otherwise publicly availablesubject to any qualifications or exceptions, are true and correct in all material respects as of the date hereof as if made on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof except for those representations and warranties that speak solely as of a specific date and which were true and correct as of such date; and
(ii) The Transaction Entities have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied pursuant to the Agreements at or prior to the date hereof (other than those conditions waived by the Placement Agents).
Appears in 1 contract
Samples: Equity Distribution Agreement (American Assets Trust, L.P.)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each The Placement Agent is acting solely as agent and/or principal in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such the Placement Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such the Placement Agent has advised or is advising the Company on other matters, and such the Placement Agent has no obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities was not established by the Placement Agent; it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the Placement Agent has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware that the Placement Agent and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Placement Agent has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(e) it waives, to the fullest extent permitted by law, any claims arising out of this Agreement or the transactions contemplated hereby it may have against any the Placement Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no the Placement Agent will shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company. [Signature Page Follows] If the foregoing is in accordance with your understanding of our agreement, other than in respect of such Agent’s obligations under this Agreement please sign and return to keep information provided by the Company to a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement by and among the Placement Agent’s , the Company and the Agents’ counsel confidential to Manager in accordance with its terms. Very truly yours, By: /s/ Xxxxxxxx Xxxx Name: Xxxxxxxx Xxxx Title: Chief Executive Officer By: /s/ Xxxxxxxx Xxxx Name: Xxxxxxxx Xxxx Title: Executive Vice President CONFIRMED AND ACCEPTED, as of the extent not otherwise publicly available.date first above written: By: /s/ Xxxx Xxxxxxx-XxXxxxxx Name: Xxxx Xxxxxxx-XxXxxxxx Title: Director By: /s/ Xxxxxxx Xxxxxx_________ Name: Xxxxxxx Xxxxxx Title: Associate Director
(a) Citizens JMP Securities, LLC Ladenburg Xxxxxxxx & Co. Inc.
Appears in 1 contract
Samples: Equity Distribution Agreement (Ellington Financial Inc.)
Absence of Fiduciary Relationship. The Each of the Company and the Operating Partnership, severally and not jointly, acknowledges and agrees that:
(a) Each the Sales Agent is acting solely as agent and/or principal in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between among the Company Company, the Operating Partnership or any of its their respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such the Sales Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such the Sales Agent has advised or is advising the Company or the Operating Partnership on other matters, and such the Sales Agent has no obligation to the Company respecting or the Operating Partnership with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities set forth in this Agreement was not established by the Sales Agent;
(c) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(cd) the Sales Agent has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(de) it is aware that the Sales Agent and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Operating Partnership and the Sales Agent has no obligation to disclose such interests and transactions to the Company and the Operating Partnership by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(ef) it waives, to the fullest extent permitted by law, any claims it may have against any the Sales Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no the Sales Agent will shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, the Operating Partnership, employees or creditors of CompanyCompany or the Operating Partnership. [Signature Page Follows.] If the foregoing is in accordance with your understanding of our agreement, other than in respect of such Agent’s obligations under this Agreement please sign and return to keep information provided by the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Sales Agent, the Company and the Operating Partnership in accordance with its terms. Very truly yours, XXXXXXX INDUSTRIAL REALTY, INC. By: /s/ Xxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxxxxxx Title: Co-Chief Executive Officer By: /s/ Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx Title: Co-Chief Executive Officer XXXXXXX INDUSTRIAL REALTY, L.P. By: Xxxxxxx Industrial Realty, Inc., its sole general partner By: /s/ Xxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxxxxxx Title: Co-Chief Executive Officer By: /s/ Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx Title: Co-Chief Executive Officer [Signature Page to Equity Distribution Agreement] CONFIRMED AND ACCEPTED, as of the date first above written: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED By: /s/ Xxxxx Xxxxxx Name: Xxxxx Xxxxxx Title: Managing Director [Signature Page to Equity Distribution Agreement] From: [ ] Cc: [` ] To: [ ] Subject: Equity Distribution—Placement Notice Gentlemen: Pursuant to the terms and subject to the conditions contained in the Equity Distribution Agreement between Xxxxxxx Industrial Realty, Inc. (the “Company”) and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (the “Sales Agent”) dated September 21, 2017 (the “Agreement”), I hereby request on behalf of the Company that the Sales Agent sell up to [ ] shares of the Company’s common stock, par value $[ ] per share, at a minimum market price of $[ ] per share. The Sales Agent shall be paid compensation equal to 1.5% of the gross proceeds from the sales of Securities pursuant to the terms of this Agreement. None.
1. Term Loan Agreement, dated July 24, 2013, among RIF I—Xxx Xxxxxx, LLC, RIF I—Xxxxx Road, LLC, RIF I—Walnut, LLC, RIF I—Oxnard, LLC, RIF II – Kaiser, LLC and RIF III—Irwindale, LLC, collectively as Borrower, and Bank of America, N.A., as Lender.
2. Modification and Loan Assumption Agreement, dated January 24, 2014, by and among RIF I—Xxx Xxxxxx, LLC, RIF I—Xxxxx Road, LLC, RIF I—Oxnard, LLC, RIF I—Walnut, LLC, XXXXXXX BUSINESS CENTER – FULLERTON, LLC, RIF II – Kaiser, LLC, RIF III—Irwindale, LLC and XXXXXXX INDUSTRIAL – MADERA INDUSTRIAL, LLC collectively as Borrower, and Bank of America, N.A., as Lender.
3. Credit Agreement, dated as of January 14, 2016, by and among Xxxxxxx Industrial Realty, L.P., as Borrower, Xxxxxxx Industrial Realty Inc., as Parent, PNC Bank, National Association, as Administrative Agent, and the Agents’ counsel confidential other parties party thereto, as amended by that certain First Amendment to Credit Agreement, dated February 23, 2016, and that certain Second Amendment to Credit Agreement, dated June 30, 2016.
4. Second Amended & Restated Credit Agreement, dated February 14, 2017, by and among Xxxxxxx Industrial Realty, L.P., as Borrower, Xxxxxxx Industrial Realty, Inc., as Parent, Citibank, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, and the extent not otherwise publicly availableother parties party thereto.
5. Note Purchase and Guarantee Agreement, dated July 16, 2015, by and among Xxxxxxx Industrial Realty, L.P., as the Issuer, Xxxxxxx Industrial Realty, Inc., as the Parent Guarantor, and each of the purchasers party thereto, as amended by that certain First Amendment to Note Purchase and Guarantee Agreement, dated June 30, 2016.
6. Note Purchase and Guarantee Agreement, dated as of July 13, 2017, by and among Xxxxxxx Industrial Realty L.P., Xxxxxxx Industrial Realty, Inc. and the purchasers named therein.
Appears in 1 contract
Samples: Equity Distribution Agreement (Rexford Industrial Realty, Inc.)
Absence of Fiduciary Relationship. The Each of the Company and the Operating Partnership, severally and not jointly, acknowledges and agrees that:
(a) Each The Sales Agent is acting solely as agent and/or principal in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between among the Company Company, the Operating Partnership or any of its their respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such the Sales Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such the Sales Agent has advised or is advising the Company and/or the Operating Partnership on other matters, and such the Sales Agent has no obligation to the Company respecting or the Operating Partnership with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities set forth in this Agreement was not established by the Sales Agent;
(c) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(cd) the Sales Agent has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(de) it is aware that the Sales Agent and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Operating Partnership and the Sales Agent has no obligation to disclose such interests and transactions to the Company or the Operating Partnership by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that ;
(f) the Sales Agent hereby agrees not to and its respective affiliates may engage in any such transaction that would cause trading in the Common Stock for their own account or for the account of its interests to be in direct conflict with clients at the best interests same time as sales of the CompanyPlacement Securities occur pursuant to this Agreement; and
(eg) it waives, to the fullest extent permitted by law, any claims it may have against any the Sales Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no the Sales Agent will shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, the Operating Partnership, employees or creditors of Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided by the Company to or the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly availableOperating Partnership.
Appears in 1 contract
Samples: Equity Distribution Agreement (Gramercy Property Trust Inc.)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each The Placement Agent is acting solely as agent and/or principal in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such the Placement Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such the Placement Agent has advised or is advising the Company on other matters, and such the Placement Agent has no obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities was not established by the Placement Agent; it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the Placement Agent has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware that the Placement Agent and its affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Placement Agent has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(e) it waives, to the fullest extent permitted by law, any claims it may have against any the Placement Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no the Placement Agent will shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company. If the foregoing is in accordance with your understanding of our agreement, other than in respect of such Agent’s obligations under this Agreement please sign and return to keep information provided by the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement by and between the Placement Agent and the Company in accordance with its terms. Very truly yours, By /s/ Xxxxx Xxxxxxx Name: Xxxxx Xxxxxxx, Ph.D. Title: President and Chief Executive Officer CONFIRMED AND ACCEPTED, as of the date first above written: By /s/ Xxxxxx Xxxxxx Name: Xxxxxx Xxxxxx Title: Managing Director, Co-Head of Biopharma Corporate Finance From: [ ] Cc: [ ] To: [ ] Subject: Equity Distribution—Placement Notice Gentlemen: Pursuant to the terms and subject to the conditions contained in the Equity Distribution Agreement between Aileron Therapeutics, Inc. (the “Company”) and Citizens JMP Securities, LLC (the “Placement Agent”) dated July 26, 2024 (the “Agreement”), I hereby request on behalf of the Company that the Placement Agent sell up to [ ] shares of the Company’s common stock, par value $0.001 per share, at a minimum market price of $[ ] per share. [ADDITIONAL SALES PARAMETERS MAY BE ADDED, SUCH AS THE MAXIMUM AGGREGATE OFFERING PRICE, THE TIME PERIOD IN WHICH SALES ARE REQUESTED TO BE MADE, SPECIFIC DATES THE SHARES MAY NOT BE SOLD ON, THE MANNER IN WHICH SALES ARE TO BE MADE BY THE PLACEMENT AGENT, AND/OR THE CAPACITY IN WHICH THE PLACEMENT AGENT MAY ACT IN SELLING SHARES (AS PRINCIPAL, AGENT, OR BOTH)] Name Email Xxxxx Xxxxxxxxx, Managing Director xxxxxxxxxx@xxxxxxxxxxxxx.xxx Xxxxxx Xxxxx, Managing Director xxxxxx@xxxxxxxxxxxxx.xxx Xxxxxx Xxxxxx, Managing Director xxxxxxx@xxxxxxxxxxxxx.xxx Xxxxxxxxx Xxxxxxxxx, Vice President xxxxxxxxxx@xxxxxxxxxxxxx.xxx Xxxx Xxxxxxxxx, Managing Director xxxxxxxxxx@xxxxxxxxxxxxx.xxx Name Email Xxxxx Xxxxxxx, President and Chief Executive Officer xxxxxxxx@xxxxxx.xxx Xxx Xxxxxxxxxx, Interim Chief Financial Officer xxxxxxxxxxx@xxxxxxxxxxxxxxxx.xxx The Placement Agent shall be paid compensation equal to 3.0% of the Agents’ counsel confidential gross proceeds from the sales of Placement Securities pursuant to the terms of this Agreement. The undersigned ______________ and ______________ are the [CFO/Treasurer] and [General Counsel/Secretary], respectively, of Aileron Therapeutics, Inc., a Delaware corporation (the “Company”). The undersigned hereby execute this Certificate in connection with the closing held as of the date hereof pursuant to the terms of that certain Equity Distribution Agreement, dated July 26, 2024 (the “Equity Distribution Agreement”), between the Company and Citizens JMP Securities, LLC. Capitalized terms used herein without definition shall have the meanings given to such terms in the Equity Distribution Agreement. The undersigned each hereby further certifies, in their respective capacities as officers of the Company, in its own capacity that:
1. The representations and warranties of the Company in the Equity Distribution Agreement (A) to the extent such representations and warranties are subject to qualifications and exceptions contained therein relating to materiality or a Material Adverse Effect, are true and correct, as if made on and as of the date hereof, with the same force and effect as if expressly made on and as of the date hereof, except for those representations and warranties that speak solely as of a specific date and which were true and correct as of such date, and (B) to the extent such representations and warranties are not otherwise publicly availablesubject to any qualifications or exceptions, are true and correct in all material respects as if made on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof except for those representations and warranties that speak solely as of a specific date and which were so true and correct as of such date;
2. The Company has complied with all of its obligations under the Equity Distribution Agreement and satisfied all of the conditions on its part to be performed or satisfied at or prior to the date hereof;
3. No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued and no proceedings for that purpose have been instituted or are pending or threatened under the Securities Act of 1933, as amended;
4. Subsequent to the respective dates as of which information is given in the Registration Statement or the Prospectus, there has not been any Material Adverse Change; and
5. Each of Xxxxxx Xxxxxx Xxxxxxxxx Xxxx and Xxxx LLP and Xxxxx Xxxxxx LLP is entitled to rely on this Officers’ Certificate in connection with the opinion that each firm is rendering pursuant to the Equity Distribution Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (Aileron Therapeutics, Inc.)
Absence of Fiduciary Relationship. The Each of the Company and the Operating Partnership, severally and not jointly, acknowledges and agrees that:
(a) Each the Sales Agent is acting solely as agent and/or principal in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between among the Company Company, the Operating Partnership or any of its their respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such the Sales Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such the Sales Agent has advised or is advising the Company or the Operating Partnership on other matters, and such the Sales Agent has no obligation to the Company respecting or the Operating Partnership with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities set forth in this Agreement was not established by the Sales Agent;
(c) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(cd) the Sales Agent has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(de) it is aware that the Sales Agent and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Operating Partnership and the Sales Agent has no obligation to disclose such interests and transactions to the Company and the Operating Partnership by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(ef) it waives, to the fullest extent permitted by law, any claims it may have against any the Sales Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no the Sales Agent will shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, the Operating Partnership, employees or creditors of CompanyCompany or the Operating Partnership. [Signature Page Follows.] If the foregoing is in accordance with your understanding of our agreement, other than in respect of such Agent’s obligations under this Agreement please sign and return to keep information provided by the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Sales Agent, the Company and the Operating Partnership in accordance with its terms. Very truly yours, XXXXXXX INDUSTRIAL REALTY, INC. By: /s/ Xxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxxxxxx Title: Co-Chief Executive Officer By: /s/ Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx Title: Co-Chief Executive Officer XXXXXXX INDUSTRIAL REALTY, L.P. By: Xxxxxxx Industrial Realty, Inc., its sole general partner By: /s/ Xxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxxxxxx Title: Co-Chief Executive Officer By: /s/ Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx Title: Co-Chief Executive Officer CONFIRMED AND ACCEPTED, as of the date first above written: CITIGROUP GLOBAL MARKETS INC. By /s/ Xxxxxxx Xxxxxx Name: Xxxxxxx Xxxxxx Title: Vice President From: [ ] Cc: [` ] To: [ ] Subject: Equity Distribution—Placement Notice Gentlemen: Pursuant to the terms and subject to the conditions contained in the Equity Distribution Agreement between Xxxxxxx Industrial Realty, Inc. (the “Company”) and Citigroup Global Markets Inc. (the “Sales Agent”) dated June 13, 2018 (the “Agreement”), I hereby request on behalf of the Company that the Sales Agent sell up to [ ] shares of the Company’s common stock, par value $[ ] per share, at a minimum market price of $[ ] per share. The Sales Agent shall be paid compensation equal to 1.5% of the gross proceeds from the sales of Securities pursuant to the terms of this Agreement. None.
1. Term Loan Agreement, dated July 24, 2013, among RIF I—Xxx Xxxxxx, LLC, RIF I—Xxxxx Road, LLC, RIF I—Walnut, LLC, RIF I—Oxnard, LLC, RIF II – Xxxxxx, LLC and RIF III—Irwindale, LLC, collectively as Borrower, and Bank of America, N.A., as Lender.
2. Modification and Loan Assumption Agreement, dated January 24, 2014, by and among RIF I—Xxx Xxxxxx, LLC, RIF I—Xxxxx Road, LLC, RIF I—Oxnard, LLC, RIF I—Walnut, LLC, XXXXXXX BUSINESS CENTER – FULLERTON, LLC, RIF II – Xxxxxx, LLC, RIF III—Irwindale, LLC and XXXXXXX INDUSTRIAL – MADERA INDUSTRIAL, LLC collectively as Borrower, and Bank of America, N.A., as Lender.
3. Credit Agreement, dated as of January 14, 2016, by and among Xxxxxxx Industrial Realty, L.P., as Borrower, Xxxxxxx Industrial Realty Inc., as Parent, PNC Bank, National Association, as Administrative Agent, and the Agents’ counsel confidential other parties party thereto, as amended by that certain First Amendment to Credit Agreement, dated February 23, 2016, and that certain Second Amendment to Credit Agreement, dated June 30, 2016.
4. Second Amended & Restated Credit Agreement, dated February 14, 2017, by and among Xxxxxxx Industrial Realty, L.P., as Borrower, Xxxxxxx Industrial Realty, Inc., as Parent, Citibank, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, and the extent not otherwise publicly availableother parties party thereto.
5. Note Purchase and Guarantee Agreement, dated July 16, 2015, by and among Xxxxxxx Industrial Realty, L.P., as the Issuer, Xxxxxxx Industrial Realty, Inc., as the Parent Guarantor, and each of the purchasers party thereto, as amended by that certain First Amendment to Note Purchase and Guarantee Agreement, dated June 30, 2016.
6. Note Purchase and Guarantee Agreement, dated as of July 13, 2017, by and among Xxxxxxx Industrial Realty L.P., Xxxxxxx Industrial Realty, Inc. and the purchasers named therein.
7. Fourth Amendment to Credit Agreement, dated as of January 16, 2018, among Xxxxxxx Industrial Realty, L.P., Xxxxxxx Industrial Realty Inc., PNC Bank, National Association, as administrative agent and a lender, and the other lenders named therein.
8. Credit Agreement, dated as of May 22, 2018, among Xxxxxxx Industrial Realty, L.P., Xxxxxxx Industrial Realty, Inc., Capital One, National Association, as administrative agent, sole lead arranger and bookrunner and BB&T Capital Markets, as syndication agent.
Appears in 1 contract
Samples: Equity Distribution Agreement (Rexford Industrial Realty, Inc.)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each Agent is acting solely as agent in connection with the public offering of the Placement Shares and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such Agent has advised or is advising the Company on other matters, and such Agent has no obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the Agent has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;; and
(d) it is aware that the Agent and its affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Agent has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that which would cause its interests to be in direct conflict with the best interests of the Company; and
(e) it waives, to the fullest extent permitted by law, any claims it may have against any Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no Agent will have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly available.
Appears in 1 contract
Samples: At Market Issuance Sales Agreement (Acasti Pharma Inc.)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each The Agent is acting solely as agent in connection with the public offering of the Placement Shares and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such the Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such the Agent has advised or is advising the Company on other matters, and such the Agent has no obligation to the Company respecting the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the Agent has not provided any legal, accounting, regulatory or tax advice respecting the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware that the Agent and its affiliates are engaged in a broad range of transactions that may involve interests that differ from those of the Company and the Agent has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(e) it waives, to the fullest extent permitted by law, any claims it may have against any the Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no the Agent will not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect of such the Agent’s obligations under this Agreement and to keep information provided by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly available.
Appears in 1 contract
Samples: At the Market Issuance Sales Agreement (Singing Machine Co Inc)
Absence of Fiduciary Relationship. The Company Each of the Company, the Operating Partnership and the Advisor, severally and not jointly, acknowledges and agrees that:
(a) Each The Agent is acting solely as agent and/or principal in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company Company, the Operating Partnership, the Advisor or any of its their respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such the Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such the Agent has advised or is advising the Company Company, the Operating Partnership and/or the Advisor on other matters, and such the Agent has no obligation to the Company respecting Company, the Operating Partnership or the Advisor with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities was not established by the Agent;
(c) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(cd) the Agent has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(de) it is aware that the Agent and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company Company, the Operating Partnership and the Advisor and the Agent has no obligation to disclose such interests and transactions to the Company Company, the Operating Partnership or the Advisor by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that ;
(f) the Agent hereby agrees not to and its respective affiliates may engage in any such transaction that would cause trading in the Series B Preferred Stock for their own account or for the accounts of its interests to be in direct conflict with clients at the best interests same time as sales of the CompanyPlacement Securities occur pursuant to this Agreement; and
(eg) it waives, to the fullest extent permitted by law, any claims it may have against any the Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no the Agent will shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, the Operating Partnership, the Advisor or their respective employees or creditors of Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly availablecreditors.
Appears in 1 contract
Samples: Equity Distribution Agreement (Braemar Hotels & Resorts Inc.)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each The Placement Agent is acting solely as agent and/or principal in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such the Placement Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such the Placement Agent has advised or is advising the Company on other matters, and such the Placement Agent has no obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities was not established by the Placement Agent; it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the Placement Agent has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware that the Placement Agent and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Placement Agent has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(e) it waives, to the fullest extent permitted by law, any claims it may have against any the Placement Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no the Placement Agent will shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company. If the foregoing is in accordance with your understanding of our agreement, other than in respect of such Agent’s obligations under this Agreement please sign and return to keep information provided by the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement by and among the Placement Agent, the Company and the Operating Partnerships in accordance with its terms. Very truly yours, By: /s/ Xxxxx Xxxxxxx Xxxxx Xxxxxxx President and Chief Executive Officer By: /s/ Xxxxx Xxxxxxx Xxxxx Xxxxxxx President and Chief Executive Officer By: /s/ Xxxxxxx Xxxxxxxx Xxxxxxx Xxxxxxxxx Vice President and Chief Financial Officer By: /s/ Xxxxx Xxxxxxx Xxxxx Xxxxxxx President and Chief Executive Officer By: /s/ Xxxxxxx Xxxxxxxxx Xxxxxxx Xxxxxxxxx Vice President and Chief Financial Officer CONFIRMED AND ACCEPTED, as of the date first above written: By /s/ Xxxx Xxxxxxxxx Xxxx Xxxxxxxxx Director of Investment Banking From: [ ] Cc: [ ] To: [ ] Subject: Equity Distribution—Placement Notice Gentlemen: Pursuant to the Agent’s terms and the Agents’ counsel confidential subject to the extent not otherwise publicly available.conditions contained in the Equity Distribution Agreement among Supertel Hospitality, Inc. (the “Company”), Supertel Limited Partnership and E&P Financing Limited Partnership and JMP Securities LLC (the “Placement Agent”) dated March 29, 2011 (the “Agreement”), I hereby request on behalf of the Company that the Placement Agent sell up to [ ] shares of the Company’s common stock, par value $0.01 per share, at a minimum market price of $[ ] per share. [ADDITIONAL SALES PARAMETERS MAY BE ADDED, SUCH AS THE MAXIMUM AGGREGATE OFFERING PRICE, THE TIME PERIOD IN WHICH SALES ARE REQUESTED TO BE MADE, SPECIFIC DATES THE SHARES MAY NOT BE SOLD ON, THE MANNER IN WHICH SALES ARE TO BE MADE BY THE PLACEMENT AGENT, AND/OR THE CAPACITY IN WHICH THE PLACEMENT AGENT MAY ACT IN SELLING SHARES (AS PRINCIPAL, AGENT, OR BOTH)] Xxxx Xxx, Director, Corporate Services Xxxxx Xxxxxxx, Managing Director, Chief Legal Officer Xxxxxxx Xxxxx, Director, Corporate Finance Xxxx Xxxxxx, Associate, Corporate Finance Xxxxx Xxxxxxx, President and Chief Executive Officer Xxxxxxx Xxxxxxxxx, Senior Vice President and Chief Financial Officer Xxxxx Xxxxxx, Senior Vice President and Treasurer The Placement Agent shall be paid compensation equal to:
Appears in 1 contract
Samples: Equity Distribution Agreement (Supertel Hospitality Inc)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each Agent FBR is acting solely as agent in connection with the public offering of the Placement Shares and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders shareholders (or other equity holdersequityholders), creditors or employees or any other party, on the one hand, and such AgentFBR, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such Agent FBR has advised or is advising the Company on other matters, and such Agent FBR has no obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the Agent FBR has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware that the Agent FBR and its affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Agent FBR has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent FBR hereby agrees not to engage in any such transaction that which would cause its interests to be in direct conflict with the best interests of the Company; and
(e) it waives, to the fullest extent permitted by law, any claims it may have against any Agent FBR for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no Agent will FBR shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect of such AgentFBR’s obligations under this Agreement and to keep information provided by the Company to the AgentFBR and FBR’s and the Agents’ counsel confidential to the extent not otherwise publicly publicly-available.
Appears in 1 contract
Samples: At the Market Issuance Sales Agreement (Just Energy Group Inc.)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each Agent USCA is acting solely as agent in connection with the public offering of the Placement Shares and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such AgentUSCA, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such Agent USCA has advised or is advising the Company on other matters, and such Agent USCA has no obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the Agent USCA has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware that the Agent USCA and its affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Agent USCA has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent USCA hereby agrees not to engage in any such transaction that which would cause its interests to be in direct conflict with the best interests of the Company; and
(e) it waives, to the fullest extent permitted by law, any claims it may have against any Agent USCA for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no Agent will USCA shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect of such AgentUSCA’s obligations under this Agreement and to keep information provided by the Company to the Agent’s USCA and the Agents’ USCA's counsel confidential to the extent not otherwise publicly publicly-available.
Appears in 1 contract
Samples: At the Market Issuance Sales Agreement (Emerald Oil, Inc.)
Absence of Fiduciary Relationship. The Company Each of the Transaction Entities, severally and not jointly, acknowledges and agrees that:
(a) Each Placement Agent is acting solely as agent and/or principal in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company Transaction Entities or any of its their respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such Placement Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such Placement Agent has advised or is advising the Company Transaction Entities on other matters, and such Placement Agent has no obligation to the Company respecting Transaction Entities with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities set forth in this Agreement was not established by Placement Agent;
(c) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(cd) the Placement Agent has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(de) it is aware that the Placement Agent and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company Transaction Entities and the Placement Agent has no obligation to disclose such interests and transactions to the Company Transaction Entities by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(ef) it waives, to the fullest extent permitted by law, any claims it may have against any Placement Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no Placement Agent will shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, Transaction Entities or employees or creditors of the Transaction Entities. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement between Placement Agent and the Company in accordance with its terms. Very truly yours, By /s/ Xxxxxx Xxxx Name: Xxxxxx Xxxx Title: Chairman, President and Chief Executive Officer By: American Assets Trust, Inc., its general partner By /s/ Xxxxxx Xxxx Name: Xxxxxx Xxxx Title: Chairman, President and Chief Executive Officer CONFIRMED AND ACCEPTED, as of the date first above written: By: /s/ Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated From: [ ] Cc: [ ] To: [ ] Subject: Equity Distribution—Placement Notice Ladies and Gentlemen: Pursuant to the terms and subject to the conditions contained in the Equity Distribution Agreement among American Assets Trust, Inc. (the “Company”), American Assets Trust, L.P. and Placement Agent (“Placement Agent”) dated May 27, 2015, as amended and restated on March 2, 2018, I hereby request on behalf of the Company that Placement Agent sell up to [__] of the Company’s common stock, par value $0.01 per share, at a minimum market price of $_______ per share. [ADDITIONAL SALES PARAMETERS MAY BE ADDED, SUCH AS THE TIME PERIOD IN WHICH SALES ARE REQUESTED TO BE MADE, SPECIFIC DATES ON WHICH THE SHARES MAY NOT BE SOLD, THE MANNER IN WHICH SALES ARE TO BE MADE BY [PLACEMENT AGENT], AND/OR THE CAPACITY IN WHICH [PLACEMENT AGENT] MAY ACT IN SELLING SHARES (AS PRINCIPAL, AGENT, OR BOTH)] Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated Xxx Xxxxxx Xxxx Xxx Xxxx, Xxx Xxxx 00000 Fax No.: (000) 000-0000 Attention: Syndicate Department Xxxxxx Xxxx Tel: (000) 000-0000 Email: xxxxx@xxxxxxxxxxxxxx.xxx Xxxxxx Xxxxxx Tel: (000) 000-0000 Email: xxxxxxx@xxxxxxxxxxxxxx.xxx Xxxx Xxxx Tel: (000) 000-0000 Email: xxxxx@xxxxxxxxxxxxxx.xxx Placement Agent shall be paid compensation to be agreed upon of up to 2% of the gross proceeds from the sales of Securities pursuant to the terms of this Agreement. The undersigned, Xxxxxx X. Xxxx and Xxxxxx X. Xxxxxx, the duly qualified and elected President and Chief Executive Officer and Executive Vice President and Chief Financial Officer, respectively, of American Assets Trust, Inc. (“Company”), a Maryland corporation, do hereby certify in such capacities and on behalf of the Company, other than in respect its own capacity and as the general partner of such American Assets Trust, L.P. (the “Operating Partnership” and, together with the Company, the “Transaction Entities”), pursuant to Section 7(o) of the Equity Distribution Agreements, each dated March 2, 2018, as amended and restated on February [●], 2018, by and among the Company, the Operating Partnership and each of RBC Capital Markets, LLC, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Mizuho Securities USA LLC, Xxxxxx Xxxxxxx & Co. LLC and Xxxxx Fargo Securities, LLC (each, a “Placement Agent’s obligations under this Agreement and to keep information provided by the Company ”), that to the Agent’s knowledge of the undersigned:
(i) The representations and warranties of the Agents’ counsel confidential Transaction Entities in Section 5 of the Agreements (A) to the extent such representations and warranties are subject to qualifications and exceptions contained therein relating to materiality or Material Adverse Effect, are true and correct on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof, except for those representations and warranties that speak solely as of a specific date and which were true and correct as of such date, and (B) to the extent such representations and warranties are not otherwise publicly availablesubject to any qualifications or exceptions, are true and correct in all material respects as of the date hereof as if made on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof except for those representations and warranties that speak solely as of a specific date and which were true and correct as of such date; and
(ii) The Transaction Entities have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied pursuant to the Agreements at or prior to the date hereof (other than those conditions waived by the Placement Agents).
Appears in 1 contract
Samples: Equity Distribution Agreement (American Assets Trust, L.P.)
Absence of Fiduciary Relationship. The Each of the Company and the Operating Partnership, severally and not jointly, acknowledges and agrees that:
(a) Each the Sales Agent is acting solely as agent and/or principal in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between among the Company Company, the Operating Partnership or any of its their respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such the Sales Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such the Sales Agent has advised or is advising the Company or the Operating Partnership on other matters, and such the Sales Agent has no obligation to the Company respecting or the Operating Partnership with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities set forth in this Agreement was not established by the Sales Agent;
(c) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(cd) the Sales Agent has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(de) it is aware that the Sales Agent and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Operating Partnership and the Sales Agent has no obligation to disclose such interests and transactions to the Company and the Operating Partnership by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(ef) it waives, to the fullest extent permitted by law, any claims it may have against any the Sales Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no the Sales Agent will shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, the Operating Partnership, employees or creditors of CompanyCompany or the Operating Partnership. [Signature Page Follows.] If the foregoing is in accordance with your understanding of our agreement, other than in respect of such Agent’s obligations under this Agreement please sign and return to keep information provided by the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Sales Agent, the Company and the Operating Partnership in accordance with its terms. Very truly yours, XXXXXXX INDUSTRIAL REALTY, INC. By: /s/ Xxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxxxxxx Title: Co-Chief Executive Officer By: /s/ Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx Title: Co-Chief Executive Officer XXXXXXX INDUSTRIAL REALTY, L.P. By: Xxxxxxx Industrial Realty, Inc., its sole general partner By: /s/ Xxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxxxxxx Title: Co-Chief Executive Officer By: /s/ Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx Title: Co-Chief Executive Officer CONFIRMED AND ACCEPTED, as of the date first above written: XXXXX FARGO SECURITIES, LLC By: /s/ Xxxx X. Xxxxxx Name: Xxxx X. Xxxxxx Title: Vice President From: [ ] Cc: [` ] To: [ ] Subject: Equity Distribution—Placement Notice Gentlemen: Pursuant to the Agent’s terms and the Agents’ counsel confidential subject to the extent not otherwise publicly availableconditions contained in the Equity Distribution Agreement between Xxxxxxx Industrial Realty, Inc. (the “Company”) and Xxxxx Fargo Securities, LLC (the “Sales Agent”) dated April 17, 2015 (the “Agreement”), I hereby request on behalf of the Company that the Sales Agent sell up to [ ] shares of the Company’s common stock, par value $[ ] per share, at a minimum market price of $[ ] per share. The Sales Agent shall be paid compensation equal to 1.5% of the gross proceeds from the sales of Securities pursuant to the terms of this Agreement. None.
1. Term Loan Agreement, dated July 24, 2013, among RIF I—Xxx Xxxxxx, LLC, RIF I—Xxxxx Road, LLC, RIF I—Walnut, LLC, RIF I—Oxnard, LLC, RIF II – Kaiser, LLC and RIF III—Irwindale, LLC, collectively as Borrower, and Bank of America, N.A., as Lender.
2. Modification and Loan Assumption Agreement, dated January 24, 2014, by and among RIF I—Xxx Xxxxxx, LLC, RIF I—Xxxxx Road, LLC, RIF I—Oxnard, LLC, RIF I—Walnut, LLC, XXXXXXX BUSINESS CENTER – FULLERTON, LLC, RIF II – Kaiser, LLC, RIF III—Irwindale, LLC and XXXXXXX INDUSTRIAL – MADERA INDUSTRIAL, LLC collectively as Borrower, and Bank of America, N.A., as Lender.
3. Amended & Restated Credit Agreement, dated June 11, 2014, among Xxxxxxx Industrial Realty, L.P., as Borrower, Xxxxxxx Industrial Realty, Inc., as Parent, Bank of America, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, The Other Lenders Party Thereto, Citigroup Global Markets Inc., PNC Bank, National Association and Xxxxx Fargo Bank, National Association, as Documentation Agents and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and Citigroup Global Markets, Inc., as Joint Lead Arrangers and Joint Bookrunners.
4. Loan and Security Agreement, dated June 24, 2014, by and among Xxxxxxx Industrial – SDLAOC, LLC, as borrower, JPMorgan Chase Bank, N.A., as Administrative Agent, the Lenders referenced therein, and X.X. Xxxxxx Securities, LLC, as Sole Bookrunner and Sole Lead Arranger.
Appears in 1 contract
Samples: Equity Distribution Agreement (Rexford Industrial Realty, Inc.)
Absence of Fiduciary Relationship. The Company Each of the Transaction Entities, severally and not jointly, acknowledges and agrees that:
(a) Each Agent The Manager is acting solely as agent (or as principal pursuant to a separate underwriting or similar agreement described in Section 1) in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such Agentthe Manager, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such Agent the Manager has advised or is advising the Company on other matters, and such Agent the Manager has no obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the Agent The Manager has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware that the Agent Manager and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Agent Manager has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(e) it waives, to the fullest extent permitted by law, any claims it may have against any Agent the Manager for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares Securities under this Agreement and agrees that no Agent will the Manager shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly available.
Appears in 1 contract
Absence of Fiduciary Relationship. The Each of the Company and the Operating Partnership, severally and not jointly, acknowledges and agrees that:
(a) Each the Sales Agent is acting solely as agent and/or principal in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between among the Company Company, the Operating Partnership or any of its their respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such the Sales Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such the Sales Agent has advised or is advising the Company or the Operating Partnership on other matters, and such the Sales Agent has no obligation to the Company respecting or the Operating Partnership with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities set forth in this Agreement was not established by the Sales Agent;
(c) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(cd) the Sales Agent has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(de) it is aware that the Sales Agent and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Operating Partnership and the Sales Agent has no obligation to disclose such interests and transactions to the Company and the Operating Partnership by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(ef) it waives, to the fullest extent permitted by law, any claims it may have against any the Sales Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no the Sales Agent will shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, the Operating Partnership, employees or creditors of Company or the Operating Partnership. [Signature Page Follows.] If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Sales Agent, the Company and the Operating Partnership in accordance with its terms. Very truly yours, XXXXXXX INDUSTRIAL REALTY, INC. By: /s/ Xxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxxxxxx Title: Co-Chief Executive Officer By: /s/ Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx Title: Co-Chief Executive Officer XXXXXXX INDUSTRIAL REALTY, L.P. By: Xxxxxxx Industrial Realty, Inc., its sole general partner By: /s/ Xxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxxxxxx Title: Co-Chief Executive Officer By: /s/ Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx Title: Co-Chief Executive Officer CONFIRMED AND ACCEPTED, as of the date first above written: XXXXXX, XXXXXXXX & COMPANY, INCORPORATED By /s/ Xxxx X. Xxxxxxx Name: Xxxx X. Xxxxxxx Title: Managing Director From: [ ] Cc: [` ] To: [ ] Subject: Equity Distribution—Placement Notice Gentlemen: Pursuant to the terms and subject to the conditions contained in the Equity Distribution Agreement between Xxxxxxx Industrial Realty, Inc. (the “Company”) and Xxxxxx, Xxxxxxxx & Company, other than in respect Incorporated (the “Sales Agent”) dated June 13, 2018 (the “Agreement”), I hereby request on behalf of such Agent’s obligations under this Agreement and to keep information provided by the Company that the Sales Agent sell up to [ ] shares of the Company’s common stock, par value $[ ] per share, at a minimum market price of $[ ] per share. The Sales Agent shall be paid compensation equal to 1.5% of the gross proceeds from the sales of Securities pursuant to the terms of this Agreement. None.
1. Term Loan Agreement, dated July 24, 2013, among RIF I—Xxx Xxxxxx, LLC, RIF I—Xxxxx Road, LLC, RIF I—Walnut, LLC, RIF I—Oxnard, LLC, RIF II – Xxxxxx, LLC and RIF III—Irwindale, LLC, collectively as Borrower, and Bank of America, N.A., as Lender.
2. Modification and Loan Assumption Agreement, dated January 24, 2014, by and among RIF I—Xxx Xxxxxx, LLC, RIF I—Xxxxx Road, LLC, RIF I—Oxnard, LLC, RIF I—Walnut, LLC, XXXXXXX BUSINESS CENTER – FULLERTON, LLC, RIF II – Xxxxxx, LLC, RIF III—Irwindale, LLC and XXXXXXX INDUSTRIAL – MADERA INDUSTRIAL, LLC collectively as Borrower, and Bank of America, N.A., as Lender.
3. Credit Agreement, dated as of January 14, 2016, by and among Xxxxxxx Industrial Realty, L.P., as Borrower, Xxxxxxx Industrial Realty Inc., as Parent, PNC Bank, National Association, as Administrative Agent’s , and the Agents’ counsel confidential other parties party thereto, as amended by that certain First Amendment to Credit Agreement, dated February 23, 2016, and that certain Second Amendment to Credit Agreement, dated June 30, 2016.
4. Second Amended & Restated Credit Agreement, dated February 14, 2017, by and among Xxxxxxx Industrial Realty, L.P., as Borrower, Xxxxxxx Industrial Realty, Inc., as Parent, Citibank, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, and the extent not otherwise publicly availableother parties party thereto.
5. Note Purchase and Guarantee Agreement, dated July 16, 2015, by and among Xxxxxxx Industrial Realty, L.P., as the Issuer, Xxxxxxx Industrial Realty, Inc., as the Parent Guarantor, and each of the purchasers party thereto, as amended by that certain First Amendment to Note Purchase and Guarantee Agreement, dated June 30, 2016.
6. Note Purchase and Guarantee Agreement, dated as of July 13, 2017, by and among Xxxxxxx Industrial Realty L.P., Xxxxxxx Industrial Realty, Inc. and the purchasers named therein.
7. Fourth Amendment to Credit Agreement, dated as of January 16, 2018, among Xxxxxxx Industrial Realty, L.P., Xxxxxxx Industrial Realty Inc., PNC Bank, National Association, as administrative agent and a lender, and the other lenders named therein.
8. Credit Agreement, dated as of May 22, 2018, among Xxxxxxx Industrial Realty, L.P., Xxxxxxx Industrial Realty, Inc., Capital One, National Association, as administrative agent, sole lead arranger and bookrunner and BB&T Capital Markets, as syndication agent.
Appears in 1 contract
Samples: Equity Distribution Agreement (Rexford Industrial Realty, Inc.)
Absence of Fiduciary Relationship. The Each of the Company, the Operating Company and the Manager, severally and not jointly, acknowledges and agrees that:
(a) Each Agent is The Agents are acting solely as agent and/or principal in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between among the Company, the Operating Company or any of its their respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such Agentthe Agents, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such Agent has the Agents have advised or is are advising the Company and/or the Operating Company on other matters, and such Agent has the Agents have no obligation to the Company respecting or the Operating Company with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities sold pursuant to this Agreement will not be established by the Agents;
(c) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(cd) the Agent has Agents have not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has have consulted its their own legal, accounting, regulatory and tax advisors to the extent it has they have deemed appropriate;
(de) it is aware that the Agent Agents and its their respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Agent has Operating Company and the Agents have no obligation to disclose such interests and transactions to the Company or the Operating Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that , except as required by applicable law;
(f) if permitted by applicable law, the Agent hereby agrees not to Agents and their respective affiliates may engage in any such transaction that would cause trading in the Common Stock for their own account or for the account of its interests to be in direct conflict with clients at the best interests same time as sales of the CompanyPlacement Securities occur pursuant to this Agreement; and
(eg) it waives, to the fullest extent permitted by law, any claims it may have against any Agent the Agents for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no Agent will the Agents shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, the Operating Company, employees or creditors of Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided by the Company to or the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly availableOperating Company.
Appears in 1 contract
Samples: Equity Distribution Agreement (Jernigan Capital, Inc.)
Absence of Fiduciary Relationship. The Each of the Company and the Operating Partnership, severally and not jointly, acknowledges and agrees that:
(a) Each the Sales Agent is acting solely as agent and/or principal in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between among the Company Company, the Operating Partnership or any of its their respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such the Sales Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such the Sales Agent has advised or is advising the Company or the Operating Partnership on other matters, and such the Sales Agent has no obligation to the Company respecting or the Operating Partnership with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities set forth in this Agreement was not established by the Sales Agent;
(c) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(cd) the Sales Agent has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(de) it is aware that the Sales Agent and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Operating Partnership and the Sales Agent has no obligation to disclose such interests and transactions to the Company and the Operating Partnership by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(ef) it waives, to the fullest extent permitted by law, any claims it may have against any the Sales Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no the Sales Agent will shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, the Operating Partnership, employees or creditors of CompanyCompany or the Operating Partnership. [Signature Page Follows.] If the foregoing is in accordance with your understanding of our agreement, other than in respect of such Agent’s obligations under this Agreement please sign and return to keep information provided by the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Sales Agent, the Company and the Operating Partnership in accordance with its terms. Very truly yours, XXXXXXX INDUSTRIAL REALTY, INC. By: /s/ Xxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxxxxxx Title: Co-Chief Executive Officer By: /s/ Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx Title: Co-Chief Executive Officer XXXXXXX INDUSTRIAL REALTY, L.P. By: Xxxxxxx Industrial Realty, Inc., its sole general partner By: /s/ Xxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxxxxxx Title: Co-Chief Executive Officer By: /s/ Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx Title: Co-Chief Executive Officer CONFIRMED AND ACCEPTED, as of the date first above written: XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxxxx Xxxxx Name: Xxxxxxx Xxxxx Title: Managing Director From: [ ] Cc: [ ] To: [ ] Subject: Equity Distribution—Placement Notice Gentlemen: Pursuant to the terms and subject to the conditions contained in the Equity Distribution Agreement between Xxxxxxx Industrial Realty, Inc. (the “Company”) and Xxxxx Fargo Securities, LLC (the “Sales Agent”) dated June 12, 2017 (the “Agreement”), I hereby request on behalf of the Company that the Sales Agent sell up to [__] shares of the Company’s common stock, par value $[__] per share, at a minimum market price of $[__] per share. The Sales Agent shall be paid compensation equal to 1.5% of the gross proceeds from the sales of Securities pursuant to the terms of this Agreement. None.
1. Term Loan Agreement, dated July 24, 2013, among RIF I—Xxx Xxxxxx, LLC, RIF I—Xxxxx Road, LLC, RIF I—Walnut, LLC, RIF I—Oxnard, LLC, RIF II – Kaiser, LLC and RIF III—Irwindale, LLC, collectively as Borrower, and Bank of America, N.A., as Lender.
2. Modification and Loan Assumption Agreement, dated January 24, 2014, by and among RIF I—Xxx Xxxxxx, LLC, RIF I—Xxxxx Road, LLC, RIF I—Oxnard, LLC, RIF I—Walnut, LLC, XXXXXXX BUSINESS CENTER – FULLERTON, LLC, RIF II – Kaiser, LLC, RIF III—Irwindale, LLC and XXXXXXX INDUSTRIAL – MADERA INDUSTRIAL, LLC collectively as Borrower, and Bank of America, N.A., as Lender.
3. Credit Agreement, dated as of January 14, 2016, by and among Xxxxxxx Industrial Realty, L.P., as Borrower, Xxxxxxx Industrial Realty Inc., as Parent, PNC Bank, National Association, as Administrative Agent, and the Agents’ counsel confidential other parties party thereto, as amended by that certain First Amendment to Credit Agreement, dated February 23, 2016, and that certain Second Amendment to Credit Agreement, dated June 30, 2016.
4. Second Amended & Restated Credit Agreement, dated February 14, 2017, by and among Xxxxxxx Industrial Realty, L.P., as Borrower, Xxxxxxx Industrial Realty, Inc., as Parent, Citibank, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, and the extent not otherwise publicly availableother parties party thereto.
5. Note Purchase and Guarantee Agreement, dated July 16, 2015, by and among Xxxxxxx Industrial Realty, L.P., as the Issuer, Xxxxxxx Industrial Realty, Inc., as the Parent Guarantor, and each of the purchasers party thereto, as amended by that certain First Amendment to Note Purchase and Guarantee Agreement, dated June 30, 2016.
Appears in 1 contract
Samples: Equity Distribution Agreement (Rexford Industrial Realty, Inc.)
Absence of Fiduciary Relationship. The Each of the Company and the Operating Partnership acknowledges and agrees that:
(a) Each Agent Citi is acting solely as agent and/or principal in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between among the Company Company, the Operating Partnership or any of its their respective affiliates, stockholders shareholders (or other equity holders), creditors or employees or any other party, on the one hand, and such AgentCiti, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such Agent Citi has advised or is advising the Company and/or the Operating Partnership on other matters, and such Agent Citi has no obligation to the Company respecting or the Operating Partnership with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities sold pursuant to this Agreement was not established by Citi;
(c) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(cd) the Agent Citi has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(de) it is aware that the Agent Citi and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Agent Citi has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company, except or required by applicable law; and
(ef) it waives, to the fullest extent permitted by law, any claims it may have against any Agent Citi for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares Securities under this Agreement and agrees that no Agent will Citi shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly available.
Appears in 1 contract
Samples: Equity Distribution Agreement (Chambers Street Properties)
Absence of Fiduciary Relationship. The Each of the Company and the Operating Partnership, severally and not jointly, acknowledges and agrees that:
(a) Each the Sales Agent is acting solely as agent and/or principal in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between among the Company Company, the Operating Partnership or any of its their respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such the Sales Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such the Sales Agent has advised or is advising the Company or the Operating Partnership on other matters, and such the Sales Agent has no obligation to the Company respecting or the Operating Partnership with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities set forth in this Agreement was not established by the Sales Agent;
(c) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(cd) the Sales Agent has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(de) it is aware that the Sales Agent and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Operating Partnership and the Sales Agent has no obligation to disclose such interests and transactions to the Company and the Operating Partnership by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(ef) it waives, to the fullest extent permitted by law, any claims it may have against any the Sales Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no the Sales Agent will shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, the Operating Partnership, employees or creditors of CompanyCompany or the Operating Partnership. [Signature Page Follows.] If the foregoing is in accordance with your understanding of our agreement, other than in respect of such Agent’s obligations under this Agreement please sign and return to keep information provided by the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Sales Agent, the Company and the Operating Partnership in accordance with its terms. Very truly yours, XXXXXXX INDUSTRIAL REALTY, INC. By: /s/ Xxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxxxxxx Title: Co-Chief Executive Officer By: /s/ Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx Title: Co-Chief Executive Officer XXXXXXX INDUSTRIAL REALTY, L.P. By: Xxxxxxx Industrial Realty, Inc., its sole general partner By: /s/ Xxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxxxxxx Title: Co-Chief Executive Officer By: /s/ Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx Title: Co-Chief Executive Officer CONFIRMED AND ACCEPTED, as of the date first above written: X.X. XXXXXX SECURITIES LLC By /s/ Xxxx Xxxxxxxxxx Name: Xxxx Xxxxxxxxxx Title: Executive Director From: [ ] Cc: [` ] To: [ ] Subject: Equity Distribution—Placement Notice Gentlemen: Pursuant to the terms and subject to the conditions contained in the Equity Distribution Agreement between Xxxxxxx Industrial Realty, Inc. (the “Company”) and X.X. Xxxxxx Securities LLC (the “Sales Agent”) dated June 13, 2018 (the “Agreement”), I hereby request on behalf of the Company that the Sales Agent sell up to [ ] shares of the Company’s common stock, par value $[ ] per share, at a minimum market price of $[ ] per share. The Sales Agent shall be paid compensation equal to 1.5% of the gross proceeds from the sales of Securities pursuant to the terms of this Agreement. None.
1. Term Loan Agreement, dated July 24, 2013, among RIF I—Xxx Xxxxxx, LLC, RIF I—Xxxxx Road, LLC, RIF I—Walnut, LLC, RIF I—Oxnard, LLC, RIF II – Xxxxxx, LLC and RIF III—Irwindale, LLC, collectively as Borrower, and Bank of America, N.A., as Lender.
2. Modification and Loan Assumption Agreement, dated January 24, 2014, by and among RIF I—Xxx Xxxxxx, LLC, RIF I—Xxxxx Road, LLC, RIF I—Oxnard, LLC, RIF I—Walnut, LLC, XXXXXXX BUSINESS CENTER – FULLERTON, LLC, RIF II – Xxxxxx, LLC, RIF III—Irwindale, LLC and XXXXXXX INDUSTRIAL – MADERA INDUSTRIAL, LLC collectively as Borrower, and Bank of America, N.A., as Lender.
3. Credit Agreement, dated as of January 14, 2016, by and among Xxxxxxx Industrial Realty, L.P., as Borrower, Xxxxxxx Industrial Realty Inc., as Parent, PNC Bank, National Association, as Administrative Agent, and the Agents’ counsel confidential other parties party thereto, as amended by that certain First Amendment to Credit Agreement, dated February 23, 2016, and that certain Second Amendment to Credit Agreement, dated June 30, 2016.
4. Second Amended & Restated Credit Agreement, dated February 14, 2017, by and among Xxxxxxx Industrial Realty, L.P., as Borrower, Xxxxxxx Industrial Realty, Inc., as Parent, Citibank, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, and the extent not otherwise publicly availableother parties party thereto.
5. Note Purchase and Guarantee Agreement, dated July 16, 2015, by and among Xxxxxxx Industrial Realty, L.P., as the Issuer, Xxxxxxx Industrial Realty, Inc., as the Parent Guarantor, and each of the purchasers party thereto, as amended by that certain First Amendment to Note Purchase and Guarantee Agreement, dated June 30, 2016.
6. Note Purchase and Guarantee Agreement, dated as of July 13, 2017, by and among Xxxxxxx Industrial Realty L.P., Xxxxxxx Industrial Realty, Inc. and the purchasers named therein.
7. Fourth Amendment to Credit Agreement, dated as of January 16, 2018, among Xxxxxxx Industrial Realty, L.P., Xxxxxxx Industrial Realty Inc., PNC Bank, National Association, as administrative agent and a lender, and the other lenders named therein.
8. Credit Agreement, dated as of May 22, 2018, among Xxxxxxx Industrial Realty, L.P., Xxxxxxx Industrial Realty, Inc., Capital One, National Association, as administrative agent, sole lead arranger and bookrunner and BB&T Capital Markets, as syndication agent.
Appears in 1 contract
Samples: Equity Distribution Agreement (Rexford Industrial Realty, Inc.)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each The Placement Agent is acting solely as agent and/or principal in connection with the public offering of the Placement Shares and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such the Placement Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such the Placement Agent has advised or is advising the Company on other matters, and such the Placement Agent has no obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Shares was not established by the Placement Agent; it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the Placement Agent has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware that the Placement Agent and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Placement Agent has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(e) it waives, to the fullest extent permitted by law, any claims it may have against any the Placement Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no the Placement Agent will shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company. If the foregoing is in accordance with your understanding of our agreement, other than in respect of such Agent’s obligations under this Agreement please sign and return to keep information provided by the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement by and among the Placement Agent, the Company in accordance with its terms. Very truly yours, By: /s/ Xxxxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxxxxx Title: Executive Vice President, Chief Financial Officer and Treasurer CONFIRMED AND ACCEPTED, as of the date first above written: By /s/ Xxxxx XxXxxx From: [ ] Cc: [ ] To: [ ] Subject: Equity Distribution—Placement Notice Gentlemen: Pursuant to the Agent’s terms and the Agents’ counsel confidential subject to the extent not otherwise publicly available.conditions contained in the Equity Distribution Agreement between Arlington Asset Investment Corp. (the “Company”) and JonesTrading Institutional Services LLC (the “Placement Agent”) dated February 22, 2017 (the “Agreement”), I hereby request on behalf of the Company that the Placement Agent sell up to [●] shares of the Company’s Class A common stock, par value $0.01 per share, at a minimum market price of $[ ] per share. [ADDITIONAL SALES PARAMETERS MAY BE ADDED, SUCH AS THE MAXIMUM AGGREGATE OFFERING PRICE, THE TIME PERIOD IN WHICH SALES ARE REQUESTED TO BE MADE, SPECIFIC DATES THE SHARES MAY NOT BE SOLD ON, THE MANNER IN WHICH SALES ARE TO BE MADE BY THE PLACEMENT AGENT, AND/OR THE CAPACITY IN WHICH THE PLACEMENT AGENT MAY ACT IN SELLING SHARES (AS PRINCIPAL, AGENT, OR BOTH)] Xxxxx Xxxxxx, Managing Director xxxxxxx@xxxxxxxxxxxx.xxx Xxx Xxxxx, Managing Director xxxx@xxxxxxxxxxxx.xxx Xxxx X’Xxxxxxxx, Vice President xxxxx@xxxxxxxxxxxx.xxx Xxxx Xxxxxx, ECM/Syndicate xxxxx@xxxxxxxxxxxx.xxx
Appears in 1 contract
Samples: Equity Distribution Agreement (Arlington Asset Investment Corp.)
Absence of Fiduciary Relationship. The Company Each of the Transaction Entities, severally and not jointly, acknowledges and agrees that:
(a) Each Agent the Manager is acting solely as agent (or as principal pursuant to a separate underwriting or similar agreement described in Section 1) in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such Agentthe Manager, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such Agent the Manager has advised or is advising the Company on other matters, and such Agent the Manager has no obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the Agent Manager has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware that the Agent Manager and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Agent Manager has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(e) it waives, to the fullest extent permitted by law, any claims it may have against any Agent the Manager for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares Securities under this Agreement and agrees that no Agent will the Manager shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company. If the foregoing is in accordance with your understanding of our agreement, other than in respect of such Agent’s obligations under this Agreement please sign and return to keep information provided by the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement between the Manager, the Company and the Operating Partnership in accordance with its terms. Very truly yours, BIOMED REALTY TRUST, INC. By /s/ XXXX X. LUBUSHKIN Name: Xxxx X. Lubushkin Title: Chief Financial Officer BIOMED REALTY, L.P. By /s/ XXXX X. LUBUSHKIN Name: Xxxx X. Lubushkin Title: Chief Financial Officer CONFIRMED AND ACCEPTED, as of the date first above written: XXXXX FARGO SECURITIES, LLC By: /s/ Xxxx X. Xxxxxx Xxxx X. Xxxxxx Vice President From: [ ] Cc: [ ] To: [ ] Subject: Equity Distribution—Placement Notice Gentlemen: Pursuant to the Agent’s terms and the Agents’ counsel confidential subject to the extent not otherwise publicly availableconditions contained in the Amended and Restated Equity Distribution Agreement between BioMed Realty Trust, Inc. (the “Company”), BioMed Realty, L.P. (the “Operating Partnership”) and Xxxxx Fargo Securities, LLC (the “Manager”) dated August 31, 2012 (the “Agreement”), I hereby request on behalf of the Company that the Manager sell up to [ ] of the Company’s common stock, par value $0.01 per share, at a minimum market price of $ per share. [ADDITIONAL SALES PARAMETERS TO BE ADDED, SUCH AS THE TIME PERIOD IN WHICH SALES ARE REQUESTED TO BE MADE, SPECIFIC DATES THE SHARES MAY NOT BE SOLD ON, AND THE MANNER IN WHICH SALES ARE TO BE MADE BY THE MANAGER] Xxxx X. Gold, Chairman and Chief Executive Officer R. Xxxx Xxxxxxx, Xx., President and Chief Operating Officer Xxxxxxxx Xxxxx (Xxxxxxxx.x.xxxxx@xxxxxxxxxx.xxx) Xxxxxxx X’Xxxxxxx (Xxxxxxx.xxxxxxxx@xxxxxxxxxx.xxx) Xxxxx Xxxxxxxxx (xxxxx.xxxxxxxxx@xxxxxxxxxx.xxx) Alex Virtue (xxxxxxx@xxxxxxxxxxxxxx.xxx)
Appears in 1 contract
Absence of Fiduciary Relationship. The Each of the Company and the Operating Partnership, severally and not jointly, acknowledges and agrees that:
(a) Each the Sales Agent is acting solely as agent and/or principal in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between among the Company Company, the Operating Partnership or any of its their respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such the Sales Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such the Sales Agent has advised or is advising the Company or the Operating Partnership on other matters, and such the Sales Agent has no obligation to the Company respecting or the Operating Partnership with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities set forth in this Agreement was not established by the Sales Agent;
(c) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(cd) the Sales Agent has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(de) it is aware that the Sales Agent and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Operating Partnership and the Sales Agent has no obligation to disclose such interests and transactions to the Company and the Operating Partnership by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(ef) it waives, to the fullest extent permitted by law, any claims it may have against any the Sales Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no the Sales Agent will shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, the Operating Partnership, employees or creditors of CompanyCompany or the Operating Partnership. [Signature Page Follows.] If the foregoing is in accordance with your understanding of our agreement, other than in respect of such Agent’s obligations under this Agreement please sign and return to keep information provided by the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement among the Sales Agent, the Company and the Operating Partnership in accordance with its terms. Very truly yours, XXXXXXX INDUSTRIAL REALTY, INC. By: /s/ Xxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxxxxxx Title: Co-Chief Executive Officer By: /s/ Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx Title: Co-Chief Executive Officer XXXXXXX INDUSTRIAL REALTY, L.P. By: Xxxxxxx Industrial Realty, Inc., its sole general partner By: /s/ Xxxxxx Xxxxxxxxx Name: Xxxxxx Xxxxxxxxx Title: Co-Chief Executive Officer By: /s/ Xxxxxxx X. Xxxxxxx Name: Xxxxxxx X. Xxxxxxx Title: Co-Chief Executive Officer CONFIRMED AND ACCEPTED, as of the date first above written: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX INCORPORATED By /s/ Xxxxx Xxxxxx Name: Xxxxx Xxxxxx Title: Managing Director From: [ ] Cc: [ ] To: [ ] Subject: Equity Distribution—Placement Notice Gentlemen: Pursuant to the terms and subject to the conditions contained in the Equity Distribution Agreement between Xxxxxxx Industrial Realty, Inc. (the “Company”) and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated (the “Sales Agent”) dated June 13, 2018 (the “Agreement”), I hereby request on behalf of the Company that the Sales Agent sell up to [ ] shares of the Company’s common stock, par value $[ ] per share, at a minimum market price of $[ ] per share. The Sales Agent shall be paid compensation equal to 1.5% of the gross proceeds from the sales of Securities pursuant to the terms of this Agreement. None.
1. Term Loan Agreement, dated July 24, 2013, among RIF I—Xxx Xxxxxx, LLC, RIF I—Xxxxx Road, LLC, RIF I—Walnut, LLC, RIF I—Oxnard, LLC, RIF II – Xxxxxx, LLC and RIF III—Irwindale, LLC, collectively as Borrower, and Bank of America, N.A., as Lender.
2. Modification and Loan Assumption Agreement, dated January 24, 2014, by and among RIF I—Xxx Xxxxxx, LLC, RIF I—Xxxxx Road, LLC, RIF I—Oxnard, LLC, RIF I—Walnut, LLC, XXXXXXX BUSINESS CENTER – FULLERTON, LLC, RIF II – Xxxxxx, LLC, RIF III—Irwindale, LLC and XXXXXXX INDUSTRIAL – MADERA INDUSTRIAL, LLC collectively as Borrower, and Bank of America, N.A., as Lender.
3. Credit Agreement, dated as of January 14, 2016, by and among Xxxxxxx Industrial Realty, L.P., as Borrower, Xxxxxxx Industrial Realty Inc., as Parent, PNC Bank, National Association, as Administrative Agent, and the Agents’ counsel confidential other parties party thereto, as amended by that certain First Amendment to Credit Agreement, dated February 23, 2016, and that certain Second Amendment to Credit Agreement, dated June 30, 2016.
4. Second Amended & Restated Credit Agreement, dated February 14, 2017, by and among Xxxxxxx Industrial Realty, L.P., as Borrower, Xxxxxxx Industrial Realty, Inc., as Parent, Citibank, N.A., as Administrative Agent, Swing Line Lender and L/C Issuer, and the extent not otherwise publicly availableother parties party thereto.
5. Note Purchase and Guarantee Agreement, dated July 16, 2015, by and among Xxxxxxx Industrial Realty, L.P., as the Issuer, Xxxxxxx Industrial Realty, Inc., as the Parent Guarantor, and each of the purchasers party thereto, as amended by that certain First Amendment to Note Purchase and Guarantee Agreement, dated June 30, 2016.
6. Note Purchase and Guarantee Agreement, dated as of July 13, 2017, by and among Xxxxxxx Industrial Realty L.P., Xxxxxxx Industrial Realty, Inc. and the purchasers named therein.
7. Fourth Amendment to Credit Agreement, dated as of January 16, 2018, among Xxxxxxx Industrial Realty, L.P., Xxxxxxx Industrial Realty Inc., PNC Bank, National Association, as administrative agent and a lender, and the other lenders named therein.
8. Credit Agreement, dated as of May 22, 2018, among Xxxxxxx Industrial Realty, L.P., Xxxxxxx Industrial Realty, Inc., Capital One, National Association, as administrative agent, sole lead arranger and bookrunner and BB&T Capital Markets, as syndication agent.
Appears in 1 contract
Samples: Equity Distribution Agreement (Rexford Industrial Realty, Inc.)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each the Placement Agent is acting solely as agent and/or principal in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such the Placement Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such the Placement Agent has advised or is advising the Company on other matters, and such the Placement Agent has no obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities was not established by the Placement Agent; it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the Placement Agent has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware that the Placement Agent and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Placement Agent has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(e) it waives, to the fullest extent permitted by law, any claims it may have against any the Placement Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no the Placement Agent will shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly available.
Appears in 1 contract
Absence of Fiduciary Relationship. The Each of the Company and the Operating Partnership acknowledges and agrees that:
(a) Each Agent BAML is acting solely as agent and/or principal in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between among the Company Company, the Operating Partnership or any of its their respective affiliates, stockholders shareholders (or other equity holders), creditors or employees or any other party, on the one hand, and such AgentBAML, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such Agent BAML has advised or is advising the Company and/or the Operating Partnership on other matters, and such Agent BAML has no obligation to the Company respecting or the Operating Partnership with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities sold pursuant to this Agreement was not established by BAML;
(c) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(cd) the Agent BAML has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(de) it is aware that the Agent BAML and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Agent BAML has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company, except or required by applicable law; and
(ef) it waives, to the fullest extent permitted by law, any claims it may have against any Agent BAML for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares Securities under this Agreement and agrees that no Agent will BAML shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly available.
Appears in 1 contract
Samples: Equity Distribution Agreement (Chambers Street Properties)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each The Placement Agent is acting solely as agent and/or principal in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such the Placement Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such the Placement Agent has advised or is advising the Company on other matters, and such the Placement Agent has no obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities was not established by the Placement Agent; it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the Placement Agent has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware that the Placement Agent and its affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Placement Agent has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(e) it waives, to the fullest extent permitted by law, any claims it may have against any the Placement Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no the Placement Agent will shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company. If the foregoing is in accordance with your understanding of our agreement, other than please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement by and among the Placement Agent and the Company in respect accordance with its terms. Very truly yours, By: /s/ Xxxxxxxxxxx Xxxx Name: Xxxxxxxxxxx Xxxx Title: Chief Executive Officer CONFIRMED AND ACCEPTED, as of the date first above written: By /s/ Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Title: Managing Director, Equity Capital Markets From: [ ] Cc: [ ] To: [ ] Subject: Equity Distribution—Placement Notice Gentlemen: Pursuant to the terms and subject to the conditions contained in the Equity Distribution Agreement between Marin Software Incorporated (the “Company”) and JMP Securities LLC (the “Placement Agent”) dated July 15, 2021 (the “Agreement”), I hereby request on behalf of the Company that the Placement Agent sell up to [ ] shares of the Company’s common stock, par value $0.001 per share, at a minimum market price of $[ ] per share. [ADDITIONAL SALES PARAMETERS MAY BE ADDED, SUCH AS THE MAXIMUM AGGREGATE OFFERING PRICE, THE TIME PERIOD IN WHICH SALES ARE REQUESTED TO BE MADE, SPECIFIC DATES THE SHARES MAY NOT BE SOLD ON, THE MANNER IN WHICH SALES ARE TO BE MADE BY THE PLACEMENT AGENT, AND/OR THE CAPACITY IN WHICH THE PLACEMENT AGENT MAY ACT IN SELLING SHARES (AS PRINCIPAL, AGENT, OR BOTH)] Name Email Xxxxx Xxxxxxxxx, Managing Director [Redacted] Xxx Xxxxxxxx, Chief Compliance Officer [Redacted] Xxxxxx Xxxxx, Managing Director [Redacted] Name Email Xxxxxx Xxxxx [Redacted] Xxxxxxx Xxxxxxx [Redacted] The Placement Agent shall be paid compensation equal to 3.0% of the gross proceeds from the sales of Securities pursuant to the terms of this Agreement. The undersigned Xxxxxx Xxxxx and Xxxxxxx Xxxxxxx are the CFO and General Counsel, respectively, of Marin Software Incorporated, a Delaware corporation (the “Company”). The undersigned hereby execute this Certificate in connection with the closing held as of the date hereof pursuant to the terms of that certain Equity Distribution Agreement, dated July 15, 2021 (the “Equity Distribution Agreement”), among the Company and JMP Securities LLC. Capitalized terms used herein without definition shall have the meanings given to such Agent’s terms in the Equity Distribution Agreement. The undersigned each hereby further certifies, in their respective capacities as officers of the Company, in its own capacity that:
1. The representations and warranties of the Company in the Equity Distribution Agreement are true and correct, as if made on and as of the date hereof, and the Company have complied with all of its obligations thereunder and satisfied all of the conditions on their part to be performed or satisfied at or prior to the date hereof;
2. No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued and no proceedings for that purpose have been instituted or are pending or threatened under this Agreement the Securities Act of 1933, as amended;
3. Subsequent to the respective dates as of which information is given in the Registration Statement or the Prospectus, there has not been (A) any Material Adverse Change, (B) any transaction that is material to the Company and its Subsidiaries taken as a whole, (C) any obligation, direct or contingent, that is material to keep information provided the Company and its Subsidiaries, taken as a whole, incurred by the Company or the Subsidiaries, (D) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Agent’s Company and the Agents’ counsel confidential its Subsidiaries, taken as a whole, or (E) any loss or damage (whether or not insured) to the extent not otherwise publicly availableProperties which has been sustained or will have been sustained which could reasonably be expected to have a Material Adverse Effect; and
4. Each of Fenwick & West LLP and Xxxxx Xxxxxx LLP is entitled to rely on this Officers’ Certificate in connection with the opinion that each firm is rendering pursuant to the Equity Distribution Agreement.
Appears in 1 contract
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each The Placement Agent is acting solely as agent and/or principal in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such the Placement Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such the Placement Agent has advised or is advising the Company on other matters, and such the Placement Agent has no obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities was not established by the Placement Agent; it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the Placement Agent has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware that the Placement Agent and its affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Placement Agent has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(e) it waives, to the fullest extent permitted by law, any claims it may have against any the Placement Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no the Placement Agent will shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company. If the foregoing is in accordance with your understanding of our agreement, other than please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement by and among the Placement Agent and the Company in respect accordance with its terms. Very truly yours, By: /s/ Xxxxxxxxxxx Xxxx Name: Xxxxxxxxxxx Xxxx Title: Chief Executive Officer CONFIRMED AND ACCEPTED, as of the date first above written: By /s/ Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Title: Managing Director, Equity Capital Markets From: [ ] Cc: [ ] To: [ ] Subject: Equity Distribution—Placement Notice Gentlemen: Pursuant to the terms and subject to the conditions contained in the Equity Distribution Agreement between Marin Software Incorporated (the “Company”) and JMP Securities LLC (the “Placement Agent”) dated August 2, 2021 (the “Agreement”), I hereby request on behalf of the Company that the Placement Agent sell up to [ ] shares of the Company’s common stock, par value $0.001 per share, at a minimum market price of $[ ] per share. [ADDITIONAL SALES PARAMETERS MAY BE ADDED, SUCH AS THE MAXIMUM AGGREGATE OFFERING PRICE, THE TIME PERIOD IN WHICH SALES ARE REQUESTED TO BE MADE, SPECIFIC DATES THE SHARES MAY NOT BE SOLD ON, THE MANNER IN WHICH SALES ARE TO BE MADE BY THE PLACEMENT AGENT, AND/OR THE CAPACITY IN WHICH THE PLACEMENT AGENT MAY ACT IN SELLING SHARES (AS PRINCIPAL, AGENT, OR BOTH)] Name Email Xxxxx Xxxxxxxxx, Managing Director [Redacted] Xxx Xxxxxxxx, Chief Compliance Officer [Redacted] Xxxxxx Xxxxx, Managing Director [Redacted] Name Email Xxxxxx Xxxxx [Redacted] Xxxxxxx Xxxxxxx [Redacted] The Placement Agent shall be paid compensation equal to 3.0% of the gross proceeds from the sales of Securities pursuant to the terms of this Agreement. The undersigned Xxxxxx Xxxxx and Xxxxxxx Xxxxxxx are the CFO and General Counsel, respectively, of Marin Software Incorporated, a Delaware corporation (the “Company”). The undersigned hereby execute this Certificate in connection with the closing held as of the date hereof pursuant to the terms of that certain Equity Distribution Agreement, dated August 2, 2021 (the “Equity Distribution Agreement”), among the Company and JMP Securities LLC. Capitalized terms used herein without definition shall have the meanings given to such Agent’s terms in the Equity Distribution Agreement. The undersigned each hereby further certifies, in their respective capacities as officers of the Company, in its own capacity that:
1. The representations and warranties of the Company in the Equity Distribution Agreement are true and correct, as if made on and as of the date hereof, and the Company have complied with all of its obligations thereunder and satisfied all of the conditions on their part to be performed or satisfied at or prior to the date hereof;
2. No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued and no proceedings for that purpose have been instituted or are pending or threatened under this Agreement the Securities Act of 1933, as amended;
3. Subsequent to the respective dates as of which information is given in the Registration Statement or the Prospectus, there has not been (A) any Material Adverse Change, (B) any transaction that is material to the Company and its Subsidiaries taken as a whole, (C) any obligation, direct or contingent, that is material to keep information provided the Company and its Subsidiaries, taken as a whole, incurred by the Company or the Subsidiaries, (D) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Agent’s Company and the Agents’ counsel confidential its Subsidiaries, taken as a whole, or (E) any loss or damage (whether or not insured) to the extent not otherwise publicly availableProperties which has been sustained or will have been sustained which could reasonably be expected to have a Material Adverse Effect; and
4. Each of Fenwick & West LLP and Xxxxx Xxxxxx LLP is entitled to rely on this Officers’ Certificate in connection with the opinion that each firm is rendering pursuant to the Equity Distribution Agreement.
Appears in 1 contract
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each the Agent is acting solely as agent in connection with the public offering of the Placement Shares and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders shareholders (or other equity holdersequityholders), creditors or employees or any other party, on the one hand, and such the Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such the Agent has advised or is advising the Company on other matters, and such the Agent has no obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the Agent has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware that the Agent and its affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Agent has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that which would cause its interests to be in direct conflict with the best interests of the Company; and
(e) it waives, to the fullest extent permitted by law, any claims it may have against any the Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no the Agent will shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect of such the Agent’s obligations under this Agreement and to keep information provided by the Company to the Agent’s Agent and the Agents’ its counsel confidential to the extent not otherwise publicly publicly-available.
Appears in 1 contract
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each Placement Agent’s responsibility to the Company is solely contractual in nature, each Placement Agent is acting has been retained solely to act as agent an Placement Agent in connection with the public offering of the Placement Shares and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, Offering and no fiduciary fiduciary, advisory or advisory agency relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such Agent, on the other hand, Placement Agent has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether Ladenburg or not such Agent Trout has advised or is advising the Company on other matters, and such Agent has no obligation to the Company respecting the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) it the price of the Units set forth in this Agreement was established by the Company following discussions and arms-length negotiations with the Representative, and the Company is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the Agent has not provided any legal, accounting, regulatory or tax advice respecting the transactions contemplated by this Agreement and it has consulted its own legalbeen advised that Ladenburg and Trout, accountingand each of their affiliates, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware that the Agent and its affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and that the Agent has Placement Agents have no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Companyrelationship; and
(ed) it waives, to the fullest extent permitted by law, any claims it may have against any Agent the Placement Agents for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that the Placement Agents shall have no Agent will have any liability (whether direct or indirect, in contract, tort or otherwise) to it the Company in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf of or in right of it or the Company, including stockholders, employees or creditors of the Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly available.
Appears in 1 contract
Samples: Placement Agency Agreement (Ekso Bionics Holdings, Inc.)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each Agent BNYMCM is acting solely as agent and/or principal in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such AgentBNYMCM, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such Agent BNYMCM has advised or is advising the Company on other matters, and such Agent BNYMCM has no obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) any public offering price of the Securities set forth in this Agreement was not established by BNYMCM;
(c) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(cd) the Agent BNYMCM has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(de) it is aware that the Agent BNYMCM and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Agent BNYMCM has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(ef) it waives, to the fullest extent permitted by law, any claims it may have against any Agent BNYMCM for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no Agent will BNYMCM shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company. If the foregoing is in accordance with your understanding of our agreement, other than in respect of such Agent’s obligations under this Agreement please sign and return to keep information provided by the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement between BNYMCM and the Company in accordance with its terms. Very truly yours, WASHINGTON REAL ESTATE INVESTMENT TRUST By: /s/ Xxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxx Title: Executive Vice President and Chief Financial Officer CONFIRMED AND ACCEPTED, as of the date first above written: BNY MELLON CAPITAL MARKETS, LLC By: /s/ Xxxxxx X. xx Xxxxxxx, Xx. From: [ ] Cc: [` ] To: [ ] Subject: Equity Distribution—Placement Notice Gentlemen: Pursuant to the Agent’s terms and subject to the Agents’ counsel confidential conditions contained in the Equity Distribution Agreement between Washington Real Estate Investment Trust (the “Company”) and BNY Mellon Capital Markets, LLC (“BNYMCM”) dated June 23, 2015 (the “Agreement”), I hereby request on behalf of the Company that BNYMCM sell up to [●] [or $[●] in aggregate offering price of] Common Shares of Beneficial Interest, par value $0.01 per share (the “Securities”), at a minimum market price of $[●] per share. The Company shall pay BNYMCM compensation equal to [●]% of the gross proceeds from the sale of the Securities set forth in this Placement Notice. Xxxxxx X. xx Xxxxxxx, Xx. Email: Equity Trading Desk Email: Xxxxxxx X. Xxxxxx Email: Xxxx X. XxXxxxxxx Email: Xxxxxx X. Xxxxx Email: BNYMCM shall be paid compensation equal to up to 2.0% of the gross proceeds from the sales of Securities pursuant to the terms of this Agreement. The actual compensation paid to BNYMCM shall be set forth in the applicable Placement Notice. WRIT Limited Partnership Delaware Limited Partnership Washington Parking, Inc. Maryland Corporation Washington Metro, Inc. Maryland Corporation Cascade/Maryland Properties, LLC Washington Limited Liability Company WRIT Frederick Crossing Lease, LLC Delaware Limited Liability Company Xxxxxxxxx Crossing Associates, LC Virginia Limited Liability Company WRIT Gateway Overlook, LLC Delaware Limited Liability Company WRIT 1140 CT, LLC Delaware Limited Liability Company WRIT 0000 00xx Xxxxxx LLC Delaware Limited Liability Company WRIT Xxxxxxxx Office LLC Delaware Limited Liability Company WRIT Fairgate LLC Delaware Limited Liability Company WRIT Olney Village Center LLC Delaware Limited Liability Company SME Rock, LLC Delaware Limited Liability Company The undersigned, the duly qualified and elected [●], of Washington Real Estate Investment Trust (“Company”), a Maryland real estate investment trust, does hereby certify in such capacity and on behalf of the Company, pursuant to Section 7(n) of the Equity Distribution Agreement dated June 23, 2015 (the “Agreement”) between the Company and BNY Mellon Capital Markets, LLC, that to the knowledge of the undersigned:
(i) The representations and warranties of the Company in Section 5 of the Agreement (A) to the extent such representations and warranties are subject to qualifications and exceptions contained therein relating to materiality or Material Adverse Effect, are true and correct on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof, except for those representations and warranties that speak solely as of a specific date and which were true and correct as of such date, and (B) to the extent such representations and warranties are not otherwise publicly availablesubject to any qualifications or exceptions, are true and correct in all material respects as of the date hereof as if made on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof except for those representations and warranties that speak solely as of a specific date and which were true and correct as of such date; and
(ii) The Company has complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied pursuant to the Agreement at or prior to the date hereof (other than those conditions waived by BNY Mellon Capital Markets, LLC).
Appears in 1 contract
Samples: Equity Distribution Agreement (Washington Real Estate Investment Trust)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each each Agent is acting solely as agent in connection with the public offering of the Placement Shares and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such Agentthe Agents, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such any Agent has advised or is advising the Company on other matters, and such Agent has the Agents have no obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the Agent has Agents have not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;; and
(d) it is aware that the Agent Agents and its their affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Agent has Agents have no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent Agents hereby agrees agree not to engage in any such transaction that which would cause its interests to be in direct conflict with the best interests of the Company; and
(e) it waives, to the fullest extent permitted by law, any claims it may have against any Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no Agent will have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly available.
Appears in 1 contract
Samples: At Market Issuance Sales Agreement (Acasti Pharma Inc.)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each the Placement Agent is acting solely as agent and/or principal in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such the Placement Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such the Placement Agent has advised or is advising the Company on other matters, and such the Placement Agent has no obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities was not established by the Placement Agent; it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the Placement Agent has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware that the Placement Agent and its affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Placement Agent has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(e) it waives, to the fullest extent permitted by law, any claims it may have against any the Placement Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no the Placement Agent will shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company. If the foregoing is in accordance with your understanding of our agreement, other than please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement by and between the Placement Agent and the Company in respect accordance with its terms. Very truly yours, By: /s/ Xxxxxxx X. Xxxxxx Name: Xxxxxxx X. Xxxxxx Title: Chief Executive Officer By /s/ Xxxxxx Xxxxx Name: Xxxxxx Xxxxx Title: Managing Director - Head of Equity Capital Markets From: [ ] Cc: [ ] To: [ ] Date: [ ] Subject: Equity Distribution—Placement Notice Gentlemen: Pursuant to the terms and subject to the conditions contained in the Equity Distribution Agreement between Idera Pharmaceuticals, Inc. (the “Company”) and JMP Securities LLC (the “Placement Agent”) dated November 26, 2018 (the “Agreement”), I hereby request on behalf of the Company that the Placement Agent sell up to [ ] shares of the Company’s common stock, par value $0.001 per share, at a minimum market price of $[ ] per share. [ADDITIONAL SALES PARAMETERS MAY BE ADDED, SUCH AS THE MAXIMUM AGGREGATE OFFERING PRICE, THE TIME PERIOD IN WHICH SALES ARE REQUESTED TO BE MADE, SPECIFIC DATES THE SHARES MAY NOT BE SOLD ON, THE MANNER IN WHICH SALES ARE TO BE MADE BY THE PLACEMENT AGENT, AND/OR THE CAPACITY IN WHICH THE PLACEMENT AGENT MAY ACT IN SELLING SHARES (AS PRINCIPAL, AGENT, OR BOTH)] Xxxxx Xxxxxxx, Managing Director xxxxxxxx@xxxxxxxxxxxxx.xxx Xxxxxx Xxxxx, Managing Director, xxxxxx@xxxxxxxxxxxxx.xxx Xxxxxxx Xxxxxxxx, Managing Director xxxxxxxxx@xxxxxxxxxxxxx.xxx Xxx Xxxxxxxx, Chief Compliance Officer xxxxxxxxx@xxxxxxxxxxxxx.xxx Xxxxxxx X. Xxxxxx xxxxxxx@xxxxxxxxxxx.xxx Xxxx X. Xxxxx xxxxxx@xxxxxxxxxxx.xxx Xxxxxx X. Xxx xxxx@xxxxxxxxxxx.xxx The Placement Agent shall be paid compensation equal to 3.0% of the gross proceeds from the sales of Securities pursuant to the terms of this Agreement. The undersigned, Xxxx X. Xxxxx and Xxxxxx X. Xxx, are the Vice President of Finance and General Counsel and Secretary, respectively, of Idera Pharmaceuticals, Inc., a Delaware corporation (the “Company”). The undersigned hereby execute this pursuant to the terms of that certain Equity Distribution Agreement, dated November 26, 2018 (the “Equity Distribution Agreement”), between the Company and JMP Securities LLC. Capitalized terms used herein without definition shall have the meanings given to such Agent’s terms in the Equity Distribution Agreement. The undersigned each hereby further certifies, in their respective capacities as officers of the Company, in its own capacity that:
1. The representations and warranties of the Company in the Equity Distribution Agreement are true and correct, as if made on and as of the date hereof, and the Company have complied with all of its obligations thereunder and satisfied all of the conditions on their part to be performed or satisfied at or prior to the date hereof;
2. No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued and no proceedings for that purpose have been instituted or are pending or threatened under this Agreement the Securities Act of 1933, as amended;
3. Subsequent to the respective dates as of which information is given in the Registration Statement or the Prospectus, there has not been (A) any Material Adverse Change, (B) any transaction that is material to the Company and its Subsidiaries taken as a whole, (C) any obligation, direct or contingent, that is material to keep information provided the Company and its Subsidiaries, taken as a whole, incurred by the Company or the Subsidiaries, (D) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Agent’s Company and the Agents’ counsel confidential its Subsidiaries, taken as a whole, or (E) any loss or damage (whether or not insured) to the extent not otherwise publicly availableProperties which has been sustained or will have been sustained which could reasonably be expected to have a Material Adverse Effect; and
4. Each of Xxxxxx, Xxxxx & Bockius LLP and Xxxxxx LLP is entitled to rely on this Officers’ Certificate in connection with the opinion that each firm is rendering pursuant to the Equity Distribution Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (Idera Pharmaceuticals, Inc.)
Absence of Fiduciary Relationship. The Company acknowledges Each of the Company, the Manager and agrees the Selling Stockholders, severally and not jointly, acknowledge and agree that:
(a) Each Agent each of the Underwriters is acting solely as agent an underwriter in connection with the public offering sale of the Placement Shares and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, Securities and no fiduciary fiduciary, advisory or advisory agency relationship between the Company Company, the Manager or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other partythe Selling Stockholders, on the one hand, and such Agentany of the Underwriters, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such Agent any of the Underwriters has advised or is advising the Company Company, the Manager or any Selling Stockholder on other matters, and such Agent has no obligation ;
(b) the price to be paid by the Company respecting Underwriters for the transactions contemplated by this Agreement except the obligations expressly Securities set forth in this AgreementAgreement was established by the Selling Stockholders following discussions and arms-length negotiations with the Representatives;
(bc) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the Agent has not provided any legal, accounting, regulatory or tax advice respecting the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware that the Agent Underwriters and its their respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company Company, the Manager or the Selling Stockholders and that none of the Agent Underwriters has no any obligation to disclose such interests and transactions to the Company Company, the Manager or the Selling Stockholders by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(e) it waives, to the fullest extent permitted by law, any claims it may have against any Agent of the Underwriters for breach of fiduciary duty or alleged breach of fiduciary duty in connection with relating to the sale of Placement Shares under transaction contemplated by this Agreement and agrees that no Agent will none of the Underwriters shall have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly availableclaim.
Appears in 1 contract
Samples: Underwriting Agreement (KKR Real Estate Finance Trust Inc.)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each The Placement Agent is acting solely as agent and/or principal in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such the Placement Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such the Placement Agent has advised or is advising the Company on other matters, and such the Placement Agent has no obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities was not established by the Placement Agent; it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the Placement Agent has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware that the Placement Agent and its affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Placement Agent has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(e) it waives, to the fullest extent permitted by law, any claims it may have against any the Placement Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no the Placement Agent will shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company. If the foregoing is in accordance with your understanding of our agreement, other than please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement by and among the Placement Agent and the Company in respect accordance with its terms. Very truly yours, By: /s/ Hxxxx Xx, Ph.D. Name: Hxxxx Xx, Ph.D. Title: President, Chief Executive Officer and Chairman of the Board CONFIRMED AND ACCEPTED, as of the date first above written: By /s/ Sxxxx Xxxxx Name: Sxxxx Xxxxx Title: Managing Director, Co-Head of Healthcare Investment Banking Concortis Biosystems, Corp. Ark Animal Health, Inc. TNK Therapeutics, Inc. BioServ Corporation Scilex Holding Company* Semnur Pharmaceuticals, Inc.* Scilex Pharmaceuticals Inc.* Sorrento Therapeutics (Shanghai) Co., Ltd. Levena Suzhou Biopharma Co., Ltd. Nanjing Levena Biopharma Co. Ltd. Virttu Biologics Limited *Entity is not a wholly-owned subsidiary of Sorrento Therapeutics, Inc. From: [ ] Cc: [ ] To: [ ] Subject: Equity Distribution—Placement Notice Gentlemen: Pursuant to the terms and subject to the conditions contained in the Equity Distribution Agreement between Sorrento Therapeutics, Inc. (the “Company”) and JMP Securities LLC (the “Placement Agent”) dated October 1, 2019 (the “Agreement”), I hereby request on behalf of the Company that the Placement Agent sell up to [ ] shares of the Company’s common stock, par value $0.0001 per share, at a minimum market price of $[ ] per share. [ADDITIONAL SALES PARAMETERS MAY BE ADDED, SUCH AS THE MAXIMUM AGGREGATE OFFERING PRICE, THE TIME PERIOD IN WHICH SALES ARE REQUESTED TO BE MADE, SPECIFIC DATES THE SHARES MAY NOT BE SOLD ON, THE MANNER IN WHICH SALES ARE TO BE MADE BY THE PLACEMENT AGENT, AND/OR THE CAPACITY IN WHICH THE PLACEMENT AGENT MAY ACT IN SELLING SHARES (AS PRINCIPAL, AGENT, OR BOTH)] Rxxxxxx Xxx, Director […***…] Gxx Xxxxxxxx, Chief Compliance Officer […***…] Axxxxx Xxxxx, Managing Director […***…] Hxxxx Xx, Ph.D., Chief Executive Officer and President […***…] Jxxxx Xxxx, Chief Financial Officer […***…] The Placement Agent shall be paid compensation equal to 3.0% of the gross proceeds from the sales of Securities pursuant to the terms of this Agreement. The undersigned [•] and [•] are the [•] and [•], respectively, of Sorrento Therapeutics, Inc., a Delaware corporation (the “Company”). The undersigned hereby execute this Certificate in connection with the closing held as of the date hereof pursuant to the terms of that certain Equity Distribution Agreement, dated October 1, 2019 (the “Equity Distribution Agreement”), among the Company and JMP Securities LLC. Capitalized terms used herein without definition shall have the meanings given to such Agent’s terms in the Equity Distribution Agreement. The undersigned each hereby further certifies, solely in each of their respective capacities as officers of the Company and not in their individual capacities, that:
1. The representations and warranties of the Company in the Equity Distribution Agreement are true and correct, as if made on and as of the date hereof, and the Company has complied with all of its obligations thereunder and satisfied all of the conditions on their part to be performed or satisfied at or prior to the date hereof;
2. No stop order suspending the effectiveness of the Registration Statement or any post-effective amendment thereto has been issued and no proceedings for that purpose have been instituted or are pending or, to the knowledge of the undersigned, threatened under this Agreement the Securities Act of 1933, as amended;
3. Subsequent to the respective dates as of which information is given in the Registration Statement or the Prospectus, there has not been (A) any Material Adverse Effect, (B) any transaction that is material to the Company and its Subsidiaries taken as a whole, (C) any obligation, direct or contingent, that is material to keep information provided the Company and its Subsidiaries, taken as a whole, incurred by the Company or the Subsidiaries, (D) any change in the capital stock or outstanding indebtedness of the Company or any Subsidiary that is material to the Agent’s Company and the Agents’ counsel confidential its Subsidiaries, taken as a whole, or (E) any loss or damage (whether or not insured) to the extent not otherwise publicly availableProperties which has been sustained or will have been sustained which could reasonably be expected to have a Material Adverse Effect; and
4. Each of Pxxx Xxxxxxxx LLP and Dxxxx Xxxxxx LLP is entitled to rely on this Officers’ Certificate in connection with the opinion that each firm is rendering pursuant to the Equity Distribution Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (Sorrento Therapeutics, Inc.)
Absence of Fiduciary Relationship. The Company Each of the Transaction Entities, severally and not jointly, acknowledges and agrees that:
(a) Each Agent Citigroup is acting solely as agent (or as principal pursuant to a separate underwriting or similar agreement described in Section 1) in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such AgentCitigroup, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such Agent Citigroup has advised or is advising the Company on other matters, and such Agent Citigroup has no obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the Agent Citigroup has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware that the Agent Citigroup and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Agent Citigroup has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(e) it waives, to the fullest extent permitted by law, any claims it may have against any Agent Citigroup for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares Securities under this Agreement and agrees that no Agent will Citigroup shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company. If the foregoing is in accordance with your understanding of our agreement, other than in respect of such Agent’s obligations under this Agreement please sign and return to keep information provided by the Company to a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement between Citigroup, the Agent’s Company and the Agents’ counsel confidential to the extent not otherwise publicly available.Operating Partnership in accordance with its terms. Very truly yours, KITE REALTY GROUP TRUST By: /s/ Xxxxxx X. Xxxx Name: Xxxxxx X. Xxxx Title: Executive Vice President and Chief Financial Officer KITE REALTY GROUP, L.P. By: Kite Realty Group Trust, its general partner By: /s/ Xxxxxx X. Xxxx Name: Xxxxxx X. Xxxx Title: Executive Vice President and Chief Financial Officer CITIGROUP GLOBAL MARKETS INC. By: /s/ Xxxxxx X. Xxxxxxxxx Name: Xxxxxx X. Xxxxxxxxx Title: Vice President
Appears in 1 contract
Samples: Equity Distribution Agreement (Kite Realty Group Trust)
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each Agent is acting solely as agent and/or principal in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company or any of its respective affiliates, stockholders shareholders (or other equity holders), creditors or employees or any other party, on the one hand, and such each Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such any Agent has advised or is advising the Company on other matters, and such each Agent has no obligation to the Company respecting with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities set forth in this Agreement was not established by the Agents;
(c) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(cd) the Agent has The Agents have not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(de) it is aware that the Agent Agents and its their respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Agent has Agents have no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(ef) it waives, to the fullest extent permitted by law, any claims it may have against any Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no Agent will shall have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, employees or creditors of Company. [Signature Page Follows.] If the foregoing is in accordance with your understanding of our agreement, other than in respect of such Agent’s obligations under this Agreement please sign and return to keep information provided by the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement between the Agents and the Company in accordance with its terms. Very truly yours, ASTRONICS CORPORATION By: /s/ Xxxxx X. Xxxxxx Name: Xxxxx X. Xxxxxx Title: Executive Vice President and Chief Financial Officer CONFIRMED AND ACCEPTED, as of the date first above written: XXXXX FARGO SECURITIES, LLC By: /s/ Xxxxxxx Xxxxxxxxx Name: Xxxxxxx Xxxxxxxxx Title: Managing Director HSBC SECURITIES (USA) INC. By: /s/ Xxxxxxx Xxxxxxx Name: Xxxxxxx Xxxxxxx Title: Managing Director From: [ ] Cc: [ ] To: [ ] Subject: Equity Distribution—Placement Notice Ladies and Gentlemen: Pursuant to the Agent’s terms and the Agents’ counsel confidential subject to the extent conditions contained in the Equity Distribution Agreement dated August 8, 2023 (the “Agreement”) among Astronics Corporation (the “Company”) and Xxxxx Fargo Securities, LLC and HSBC Securities (USA) Inc. (each an “Agent” and together, the “Agents”) I hereby request on behalf of the Company that [applicable Agent] sell up to [●] shares of the Company’s common stock, par value $0.01 per share, at a minimum market price of $[●] per share. The daily issuance of the above referenced shares of common stock should not otherwise publicly available.represent any more than [●]% of the Company’s average daily trading volume on any given day, and should be issued between [●], 20[●] and [●], 20[●]. Xxxx Xxxxx, Managing Director (*********) Xxxxxxx Xxxxxxxxx, Managing Director (*********) Xxxxxxxx Xxxxxxx, Vice President (*********) Xxxxxxxx Xxxxx, Managing Director, Head of Special Equities (*********) Xxxxx X’Xxxxxxx, Xxxxxxxx Director (*********) Xxxxx Xxxxxxxx, Operations Manager (*********) Xxxxxxx Xxxxxxx, Managing Director (*********) Xxxx Xxxxxxxxx, Vice President (*********) Xxxx Xxx, Associate (*********) *********
Appears in 1 contract
Absence of Fiduciary Relationship. The Company acknowledges and agrees that:
(a) Each Agent Aegis is acting solely as agent an underwriter in connection with the public offering sale of the Placement Shares and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, Securities and no fiduciary fiduciary, advisory or advisory agency relationship between the Company or any of its respective affiliates, stockholders (or other equity holders), creditors or employees or any other partyCompany, on the one hand, and such AgentAegis, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such Agent Aegis has advised or is advising the Company on other matters, ;
(b) the public offering price of the Securities and such Agent has no obligation the price to be paid by Aegis for the Company respecting the transactions contemplated by this Agreement except the obligations expressly Securities set forth in this AgreementAgreement were established by the Company following discussions and arms-length negotiations with Xxxxx;
(bc) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(c) the Agent has not provided any legal, accounting, regulatory or tax advice respecting the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(d) it is aware that the Agent Aegis and its affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company and the Agent that Aegis has no obligation to disclose such interests and transactions to the Company by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(e) it waives, to the fullest extent permitted by law, any claims it may have against any Agent Aegis for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no Agent will Aegis shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the CompanyCompany or any shareholders, employees or creditors of Company, other than in respect of such Agent’s obligations under this Agreement and to keep information provided by the Company to the Agent’s and the Agents’ counsel confidential to the extent not otherwise publicly available.
Appears in 1 contract
Absence of Fiduciary Relationship. The Company Each of the Transaction Entities, severally and not jointly, acknowledges and agrees that:
(a) Each Placement Agent is acting solely as agent and/or principal in connection with the public offering of the Placement Shares Securities and in connection with each transaction contemplated by this Agreement and the process leading to such transactions, and no fiduciary or advisory relationship between the Company Transaction Entities or any of its their respective affiliates, stockholders (or other equity holders), creditors or employees or any other party, on the one hand, and such Placement Agent, on the other hand, has been or will be created in respect of any of the transactions contemplated by this Agreement, irrespective of whether or not such Placement Agent has advised or is advising the Company Transaction Entities on other matters, and such Placement Agent has no obligation to the Company respecting Transaction Entities with respect to the transactions contemplated by this Agreement except the obligations expressly set forth in this Agreement;
(b) the public offering price of the Securities set forth in this Agreement was not established by Placement Agent;
(c) it is capable of evaluating and understanding, and understands and accepts, the terms, risks and conditions of the transactions contemplated by this Agreement;
(cd) the Placement Agent has not provided any legal, accounting, regulatory or tax advice respecting with respect to the transactions contemplated by this Agreement and it has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate;
(de) it is aware that the Placement Agent and its respective affiliates are engaged in a broad range of transactions that which may involve interests that differ from those of the Company Transaction Entities and the Placement Agent has no obligation to disclose such interests and transactions to the Company Transaction Entities by virtue of any fiduciary, advisory or agency relationship or otherwise; provided that the Agent hereby agrees not to engage in any such transaction that would cause its interests to be in direct conflict with the best interests of the Company; and
(ef) it waives, to the fullest extent permitted by law, any claims it may have against any Placement Agent for breach of fiduciary duty or alleged breach of fiduciary duty in connection with the sale of Placement Shares under this Agreement and agrees that no Placement Agent will shall not have any liability (whether direct or indirect, in contract, tort or otherwise) to it in respect of such a fiduciary duty claim or to any Person person asserting a fiduciary duty claim on its behalf or in right of it or the Company, Transaction Entities or employees or creditors of the Transaction Entities. If the foregoing is in accordance with your understanding of our agreement, please sign and return to the Company a counterpart hereof, whereupon this instrument, along with all counterparts, will become a binding agreement between Placement Agent and the Company in accordance with its terms. Very truly yours, By /s/ Xxxxxx Xxxx Name: Xxxxxx Xxxx Title: Chairman, President and Chief Executive Officer By: American Assets Trust, Inc., its general partner By /s/ Xxxxxx Xxxx Name: Xxxxxx Xxxx Title: Chairman, President and Chief Executive Officer CONFIRMED AND ACCEPTED, as of the date first above written: By: /s/ Xxxxx Fargo Securities, LLC From: [ ] Cc: [ ] To: [ ] Subject: Equity Distribution—Placement Notice Ladies and Gentlemen: Pursuant to the terms and subject to the conditions contained in the Equity Distribution Agreement among American Assets Trust, Inc. (the “Company”), American Assets Trust, L.P. and Placement Agent (“Placement Agent”) dated May 27, 2015, as amended and restated on March 2, 2018, I hereby request on behalf of the Company that Placement Agent sell up to [__] of the Company’s common stock, par value $0.01 per share, at a minimum market price of $_______ per share. [ADDITIONAL SALES PARAMETERS MAY BE ADDED, SUCH AS THE TIME PERIOD IN WHICH SALES ARE REQUESTED TO BE MADE, SPECIFIC DATES ON WHICH THE SHARES MAY NOT BE SOLD, THE MANNER IN WHICH SALES ARE TO BE MADE BY [PLACEMENT AGENT], AND/OR THE CAPACITY IN WHICH [PLACEMENT AGENT] MAY ACT IN SELLING SHARES (AS PRINCIPAL, AGENT, OR BOTH)] Xxxxx Fargo Securities, LLC 000 Xxxx Xxxxxx 0xx Xxxxx Xxx Xxxx, XX 00000 Facsimile: (000) 000-0000 Attention: Equity Capital Markets Xxxxxx Xxxx Tel: (000) 000-0000 Email: xxxxx@xxxxxxxxxxxxxx.xxx Xxxxxx Xxxxxx Tel: (000) 000-0000 Email: xxxxxxx@xxxxxxxxxxxxxx.xxx Xxxx Xxxx Tel: (000) 000-0000 Email: xxxxx@xxxxxxxxxxxxxx.xxx Placement Agent shall be paid compensation to be agreed upon of up to 2% of the gross proceeds from the sales of Securities pursuant to the terms of this Agreement. The undersigned, Xxxxxx X. Xxxx and Xxxxxx X. Xxxxxx, the duly qualified and elected President and Chief Executive Officer and Executive Vice President and Chief Financial Officer, respectively, of American Assets Trust, Inc. (“Company”), a Maryland corporation, do hereby certify in such capacities and on behalf of the Company, other than in respect its own capacity and as the general partner of such American Assets Trust, L.P. (the “Operating Partnership” and, together with the Company, the “Transaction Entities”), pursuant to Section 7(o) of the Equity Distribution Agreements, each dated March 2, 2018, as amended and restated on March 2, 2018, by and among the Company, the Operating Partnership and each of RBC Capital Markets, LLC, Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, Mizuho Securities USA LLC, Xxxxxx Xxxxxxx & Co. LLC and Xxxxx Fargo Securities, LLC (each, a “Placement Agent’s obligations under this Agreement and to keep information provided by the Company ”), that to the Agent’s knowledge of the undersigned:
(i) The representations and warranties of the Agents’ counsel confidential Transaction Entities in Section 5 of the Agreements (A) to the extent such representations and warranties are subject to qualifications and exceptions contained therein relating to materiality or Material Adverse Effect, are true and correct on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof, except for those representations and warranties that speak solely as of a specific date and which were true and correct as of such date, and (B) to the extent such representations and warranties are not otherwise publicly availablesubject to any qualifications or exceptions, are true and correct in all material respects as of the date hereof as if made on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof except for those representations and warranties that speak solely as of a specific date and which were true and correct as of such date; and
(ii) The Transaction Entities have complied in all material respects with all agreements and satisfied all conditions on their part to be performed or satisfied pursuant to the Agreements at or prior to the date hereof (other than those conditions waived by the Placement Agents).
Appears in 1 contract
Samples: Equity Distribution Agreement (American Assets Trust, L.P.)
