Agent’s Representations, Warranties and Covenants. Each entity comprising the Agent hereby severally represents, warrants, and covenants in favor of Merchant as follows:
(a) The Agent shall conduct the Sale in accordance with applicable non-bankruptcy laws and Merchant’s Leases and shall not change the Merchant’s procedures and practices currently employed, except as otherwise provided in the Sale Order.
(b) Agent has the right, power, and authority to execute and deliver each of the Agency Documents to which it is a party and to perform fully its obligations thereunder. Agent has taken all necessary actions required to authorize the execution, delivery, and performance of the Agency Documents, and no further consent or approval is required on the part of Agent for Agent to enter into and deliver the Agency Documents, to perform its obligations thereunder, and to consummate the Sale. Each of the Agency Documents has been duly executed and delivered by the Agent and, constitutes the legal, valid, and binding obligation of Agent enforceable in accordance with its terms. No court order or decree of any federal, state, or local governmental authority or regulatory body is in effect that would prevent or impair or is required for Agent’s consummation of the transactions contemplated by this Agreement, and no consent of any third party which has not been obtained is required therefor other than as provided herein. No contract or other agreement to which Agent is a party or by which Agent is otherwise bound will prevent or impair the consummation of the transactions contemplated by this Agreement.
(c) The Agent shall provide qualified and experienced store supervisors to conduct the Sale.
(d) Prior to the execution of this Agreement and the APA, the Merchant has provided the Agent reasonable access to all pricing and cost files, computer hardware, software and data files, inter-Store transfer logs, markdown schedules, invoices, style runs and all other documents relative to the price, mix and quantities of inventory located at the Stores which have been posted by the Merchant to the on-line data room made available to prospective bidders for the right to conduct the Sale.
(e) On the date immediately preceding the Inventory Date, the Agent has had and will have had the opportunity to inspect the Stores and the Merchandise.
Agent’s Representations, Warranties and Covenants. The Agent represents and warrants to and agrees with the Company that:
10.1 Agent is a corporation duly incorporated and existing under the laws of the state of Georgia Agent is registered with the Securities Exchange Commission and the NASD.
10.2 There is not now pending or threatened against the Agent any action or proceeding of which the Agent has been advised, either in any court of competent jurisdiction, before the Commission or before any state securities commission or the NASD, concerning the Agent's activities which would impair the ability of the Agent to conduct the Offering as contemplated by this Agreement.
10.3 All corporate actions by Agent required for the execution, delivery and performance of this Agreement have been taken. The execution and delivery of this Agreement by the Agent, the observance and performance thereof, and the consummation of the transactions contemplated herein or in the Offering Documents do not and will not constitute a material breach of, or a material default under, any instrument or agreement by which the Agent is bound, and does not and will not, to the best of the Agent's knowledge, contravene any existing law, decree or order applicable to it. This Agreement constitutes a valid and binding agreement of Agent, enforceable in accordance with its terms.
10.4 Agent understands and acknowledges that the Securities are not being registered under the '33 Act, and that the Offering is to be conducted pursuant to Regulation D. Accordingly, in conducting its activities under this Agreement Agent shall offer Securities only to "accredited investors," as defined in Regulation D.
10.5 Agent's representations and warranties under this Section shall be true and correct as of the Closing, and shall survive the Closing for a period of one year.
Agent’s Representations, Warranties and Covenants. The Agent hereby represents and warrants to, and covenants with the Company that:
(a) it is duly qualified and registered to carry on business as a securities dealer in each of the jurisdictions where the sale of the Special Warrants requires such qualification and/or registration in a manner that permits the sale of the Special Warrants on a basis described in paragraph 5(b);
(b) it will offer and solicit offers for the purchase of the Special Warrants in compliance with Applicable Laws and only from such persons and in such manner that, pursuant to applicable Securities Laws and the securities laws of any other jurisdiction applicable to the offer, sale and solicitation of the Special Warrants under this Offering, no prospectus, registration statement or similar document need be delivered or filed, other than any prescribed reports of the issue and sale of the Special Warrants and, in the case of any jurisdiction other than the Qualifying Jurisdictions, no continuous disclosure obligations will be created;
(c) it will make any offers or sales of Special Warrants in accordance with the terms of this Agreement;
(d) it will conduct, and will cause its affiliates and any person acting on its behalf to conduct, activities in connection with arranging for the offer and sale of the Special Warrants in compliance with applicable Securities Laws and the securities laws of any other jurisdiction applicable to the offer and sale of the Special Warrants;
(e) it will obtain from each Purchaser a completed and executed Subscription Agreement, together with all Subscription Documents (including documents required by the CSE, if any) as may be necessary in connection with subscriptions for Special Warrants to ensure compliance with applicable Securities Laws and the securities laws of any other jurisdiction applicable to the offer and sale of the Special Warrants under this Offering; and
(f) it will refrain from advertising the Offering in: (i) printed media of general and regular paid circulation; (ii) radio; (iii) television; or (iv) telecommunication (including electronic display and the Internet) and not make use of any green sheet or other internal marketing without the consent of the Company, such consent to be promptly considered and not to be unreasonably withheld.
Agent’s Representations, Warranties and Covenants. 13.1 The Agent covenants and agrees with the Corporation not to distribute any issuable securities hereunder in such manner as to require registration or the filing of a prospectus or any similar document by the Corporation under the laws of any jurisdiction outside the Qualifying Jurisdictions and to distribute any issuable securities hereunder in accordance with all applicable laws. In particular, the Agent, on its own behalf and on behalf of its respective U.S. broker-dealer affiliates (“U.S. Affiliates”), acknowledges and agrees with the Corporation that the securities issuable hereunder have not been and will not be registered under the 1933 Act or under any state securities laws and may not be offered or sold within the United States (as defined in Regulation S) (the “United States”) or to, or for the account or benefit of, any U.S. person. Any agreements between the Agent and the members of any banking or selling group shall include an agreement to be bound by the same representations, warranties and covenants contained in this section 13.
13.2 The Agent covenants and agrees with the Corporation that it will not solicit offers to purchase and sell any securities issuable hereunder so as to require registration thereof or filing of a prospectus with respect thereto under the laws of any jurisdiction other than the Qualifying Jurisdictions and that: (a) other than the Prospectus or any Prospectus Amendment, it has not provided and will not without the prior written approval of the Corporation and the Agent, provide any information in respect of the Units to any potential investors of the Units.
13.3 Except as otherwise contemplated by this Agreement, the Agent shall offer the securities issuable hereunder directly in Canada or outside Canada or the United States through authorized dealers, only as permitted by the Securities Laws, upon the terms and conditions set forth in the Prospectus or any Prospectus Amendment and in this Agreement, and will require any banking, selling or other group formed by it in connection with the distribution of such securities to agree to so distribute.
13.4 The Agent shall use all reasonable efforts to complete the distribution of the Units in the Qualifying Jurisdictions or outside Canada and the United States on, or as soon as possible after, the Closing Time.
13.5 The Agent shall promptly give the Corporation written notice of the date on which, in the Agent’s opinion, distribution or distribution to the public, as th...
Agent’s Representations, Warranties and Covenants. The Agent represents and warrants to and agrees with the Company that:
13.1 The Placement Agent is a limited liability company duly organized and existing under the laws of the state of Georgia. The Placement Agent is an OSJ branch office of Dunwoody 91 Brokerage Services, Inc., a licensed NASD broker-dealer, and a member of SIPC.
13.2 There is not now pending or threatened or to the Agent's knowledge, contemplated against the Agent any action or proceeding of which the Agent has been advised, either in any court of competent jurisdiction, before the Commission or before any state securities commission or the NASD, concerning the Agent's activities which would impair the ability of the Agent to conduct the Offering as contemplated by this Agreement.
13.3 In the event any action or proceeding of the type referred to Section 13.2 above shall in be instituted or threatened against the Agent at any time prior to the Closing Date or, in the event there shall be filed by or against the Agent in any court, pursuant to any federal, state, local or municipal statute, a petition in bankruptcy or insolvency or for reorganization or for the appointment of a receiver or trustee of its assets or if the Agent makes an assignment for the benefit of creditors, the Company shall have the right, on three (3) days' written notice to the Agent, to terminate this Agreement without any liability to the Agent of any kind, except for the payment of all expenses provided herein.
13.4 Agent understands and acknowledges that prior to issuance, the Securities are not being registered under the Act, and that the Offering is to be conducted pursuant to Regulation D under the Securities Act of 1933, as amended, (the "Act"). Accordingly, in conducting its activities under this Agreement.
(a) Agent has not offered or sold and will not offer or sell any Securities to any investor which Agent does have reasonable grounds to believe, or does not believe, is an "Accredited Investor," within the meaning of Regulation D under the Act.
(b) Agent has not offered or sold and will not offer or sell any Securities by means of any form of general solicitation or general advertising, including, but not limited to, the following:
(1) any advertisement article, notice or other communication published in any newspaper, magazine or similar medium or broadcast over television or radio; and
(2) any seminar or meeting whose attendees have been invited by any general solicitation or general advertising.
(c) Ag...
Agent’s Representations, Warranties and Covenants. Agent hereby represents, warrants and covenants in favor of Merchant as follows:
Agent’s Representations, Warranties and Covenants. The Agent represents and warrants to and agrees with the Company that:
11.1. Agent is a corporation duly incorporated and existing under the laws Canada. Agent is not registered with the Securities Exchange Commission and is not a member. The Agent will not offer the securities in the U.S. or to citizens or residents of the U.S.
11.2. Agent understands and acknowledges that the Securities are not being registered under the Act, and that the Offering is to be conducted pursuant to Regulation D, Section 4(2) of the Act, or Regulation S, and that the Company is not making the disclosures required for offerings to purchasers other than accredited investors. Accordingly, in conducting its activities under this Agreement, Agent shall offer Securities only to "accredited investors," as defined in Regulation D.
Agent’s Representations, Warranties and Covenants. The Agent represents and warrants to and agrees with the Company that:
11.1 Agent is a corporation duly incorporated and existing under the laws of the state of Georgia. Agent is registered with the Securities Exchange Commission and the NASD.
11.2 There is not now pending or threatened against the Agent any action or proceeding of which the Agent has been advised, either in any court of competent jurisdiction, before the Commission or before any state securities commission or the NASD, concerning the Agent's activities which would impair the ability of the Agent to conduct the Offering as contemplated by this Agreement.
11.3 Agent's representations and warranties under this Section shall be true and correct as of each Closing, and shall survive each Closing for a period of six months.
Agent’s Representations, Warranties and Covenants. [Each entity comprising] Agent hereby represents, warrants and covenants in favor of Merchant as follows:
(a) Each entity comprising Agent: (i) is a limited partnership, corporation or limited liability company (as the case may be) duly and validly existing and in good standing under the laws of the State of its organization; (ii) has all requisite power and authority to carry on its business as presently conducted and to consummate the transactions contemplated hereby.
Agent’s Representations, Warranties and Covenants. The Agent represents and warrants to and agrees with the Company that:
11.1. Agent is a corporation duly incorporated and existing under the laws of the State of Maryland. Agent is registered with the Securities Exchange Commission and is a member in good standing of the NASD.
11.2. Agent understands and acknowledges that the Securities are not being registered under the Act, and that the Offering is to be conducted pursuant to Regulation D. Accordingly, in conducting its activities under this Agreement, Agent shall offer Securities only to "accredited investors," as defined in Regulation D.
11.3. Neither the Agent nor any of its Affiliates will take any action which will impair the effectiveness of the transactions contemplated by this Agreement.
11.4. All corporate actions by Agent required for the execution, delivery and performance of this Agreement have been taken. The execution and delivery of this Agreement by the Agent, the observance and performance thereof, and the consummation of the transactions contemplated herein or in the Purchase Agreement do not and will not constitute a material breach of, or a material default under, any instrument or agreement by which the Agent is bound, and does not and will not, to the best of the Agent's knowledge, contravene any existing law, decree or order applicable to it. This Agreement constitutes a valid and binding agreement of Agent, enforceable in accordance with its terms.
11.5. Agent's representations and warranties under this Section shall be true and correct as of the Closing, and shall survive the Closing for a period of six months.
