Obligations of Distributor During the term of this Agreement, Distributor shall at all times use best efforts and commensurate with distributor's overall business to enhance the image and reputation of Company and the Products which are the subject matter hereof, and agrees:
3.1 Distributor shall not disclose information of Company considered by Company to be confidential or proprietary including, but not limited to, customer and price lists and data regarding the design or methods of manufacture of the Products and will not use any such information except as contemplated by this Agreement. Such information will be appropriately marked or identified by Company and the obligation of Distributor not to disclose or improperly use such information will survive the termination of this Agreement. Upon the termination of this Agreement or the earlier request of Company, all such information will be promptly returned to Company. The restrictions of this Section 3.1 are in addition to any other agreement between the parties with respect to the protection and use of information. ALL CONFIDENTIAL INFORMATION SUPPLIED TO COMPANY (INCLUDING, WITHOUT LIMIT, CUSTOMER NAMES AND DATA) BY DISTRIBUTOR SHALL REMAIN DISTRIBUTOR'S PROPERTY AND SHALL NOT BE DISCLOSED BY COMPANY OR USED TO DISTRIBUTOR'S DETRIMENT.
3.2 Distributor agrees that they will comply with all applicable federal, state, and local laws or regulations in performing any act arising out of or in connection with this Agreement. Distributor agrees to maintain such records as are required by all applicable laws and regulations and this Agreement and to promptly provide such records or written assurances as may be required by Company in connection therewith. The parties agree that each will use its best efforts to secure any licenses or permits as may now or hereafter be required in connection with the performance of its obligations under this Agreement, but this Agreement shall not be deemed to require any performance on the part of either party which cannot lawfully be done pursuant to the laws and regulations referred to above.
3.3 Distributor shall sell only Company's Products that bear Company's markings or trademarks and will not alter, modify or in any way change the Products, marking or trademarks thereon without prior written approval of Company.
3.4 Distributor shall offer and sell Products only in accordance with specifications and warranty schedules provided by Company.
3.5 Distributor shall provide Company by the 15th day of each month a report detailing the total sales and inventory levels of the Products for the prior month.
3.6 Distributor shall use its best efforts to actively promote the sale of the Products to customers in its territory commensurate with its overall business. Such efforts shall include, but not be limited to, promptly servicing all customer accounts, soliciting new customer accounts, and cooperating and participating in Company's advertising and sales promotional programs.
3.7 Distributor shall provide and maintain, without expense to Company, a suitable place of business with adequate facilities and sufficient personnel for the sale and distribution of the Products and to fulfill all other additional objectives agreed to in writing by Company and Distributor.
3.8 Distributor shall pay all fees, taxes and duties which may be imposed on the Products purchased by Distributor. To the extent that Company must pay any fees, taxes or duties on Products sold to Distributor, Distributor shall promptly reimburse Company.
3.9 Distributor shall refrain from any activities which are illegal, unethical, or which might damage Company's reputation.
3.10 Distributor shall fully comply with all agreements with Company, including without limitation, the obligations to pay amounts due when due.
3.11 Distributor shall use its best efforts to consolidate purchase orders to promote efficiency and reduce supporting documentation.
Conditions of Use CLIENT acknowledges that its use of the Site is subject to and conditioned upon the following terms and agrees that TAILGATE GUYS may exercise any of the remedies set forth herein for CLIENTS failure to comply:
a. CLIENT shall comply with all rules and regulations established by TAILGATE GUYS, University of Michigan, and any other applicable authority, including but not limited to parking regulations in effect on campus. A copy of current rules and regulations is attached hereto as Exhibit A, which shall be subject to adjustment at any time by TAILGATE GUYS, University of Michigan or other applicable authorities.
b. CLIENT shall be permitted to access the Site at the respective times set forth in the rules or otherwise determined by TAILGATE GUYS and University of Michigan.
c. CLIENT acknowledges all risks related to its attendance and use of the site, including risk of damage to or loss of property or risk of serious personal injury or death, and accepts sole responsibility for such risks. CLIENT shall secure all personal property in and around the Site and shall take all precautions necessary to prevent theft or destruction thereof. CLIENT expressly acknowledges and agrees that TAILGATE GUYS shall not be responsible for any personal property of or injury to CLIENT at any time. TAILGATE GUYS will not remove or hold for safe-keeping any personal items left on the Site after event closing and same will be subject to removal by University of Michigan facilities. CLIENT may be subject to costs and fees associated with such removal.
d. Eligibility for any TAILGATE GUYS drop off service is determined by Tailgate Guys in its sole discretion and is based on University restrictions, staffing availability and other factors. If CLIENT is eligible to participate in any TAILGATE GUYS drop off service, the CLIENT is responsible for properly packaging all items that will be transported and otherwise agrees to comply with procedures established by TAILGATE GUYS for this “drop off service,” including but not limited to any limitations with regard to the amount and size of items to be transported. TAILGATE GUYS will not be responsible for any damaged or broken items during unloading or loading and transportation to or from the Site.
e. CLIENT shall respect the interests of other fans and clients of TAILGATE GUYS and shall not engage in or permit disorderly or offensive conduct in or around the Site. CLIENT further agrees not to exceed the maximum number of guests allowed within the as set forth in the Exhibit A. Should CLIENT violate these provisions, TAILGATE GUYS management will give CLIENT a verbal warning. If CLIENT fails to promptly come into compliance, TAILGATE GUYS may immediately revoke CLIENT’s rights to the Site and in its sole and absolute discretion terminate this Agreement. Upon such revocation or termination, all amounts paid to TAILGATE GUYS with be forfeited by CLIENT and retained by TAILGATE GUYS.
f. CLIENT shall not move, alter, or disrupt operation of any media equipment provided by TAILGATE GUYS. In the event of inclement weather, TAILGATE GUYS reserves the exclusive right to cover and protect all equipment associated with the Media Package with such materials and coverings as it deems appropriate, which may include gator covers or hard cases for TV’s, plastic bags for receivers and generators or the like (collectively, the "Protective Equipment"). CLIENT shall not remove any Protective Equipment or items contained inside Protective Equipment, and expressly acknowledges and agrees that only TAILGATE GUYS staff shall have authority to do so. CLIENT acknowledges and agrees that its right to use the media equipment may be suspended, without refund, at TAILGATE GUYS option, for violation of these provisions, and CLIENT further assumes all responsibility for any damages to media equipment resulting from violation of these provisions and shall reimburse TAILGATE GUYS for the cost to repair or replace damaged equipment.
g. CLIENT shall keep the Site in a neat and orderly manner at all times and may incur fees set forth on Exhibit A, attached hereto and made a part hereof.
h. CLIENT acknowledges and agrees that the signage identifying each Site is uniform and provided by TAILGATE GUYS, who reserves the right to omit any vulgar, offensive or discriminatory content requested by CLIENT, in the sole and absolute discretion of TAILGATE GUYS.
i. TAILGATE GUYS reserves the right to immediately terminate CLIENT’s use of the Site for violation of the conditions of use. In addition, CLIENT shall be responsible for payment of all damages incurred by TAILGATE GUYS as a result of CLIENT’s failure to comply with the foregoing conditions of use or as a result of damages by CLIENT of any equipment of TAILGATE GUYS. To insure compliance and payment of damages or fines, CLIENT agrees to keep a credit card on file with TAILGATE GUYS, and hereby authorizes TAILGATE to charge said credit card amounts owing as a result of its breach; provided that TAILGATE GUYS delivers to CLIENT an itemization of said charges and receipt for payment thereof.
Conditions of Initial Purchasers’ Obligations The obligation of each Initial Purchaser to purchase Securities on the Closing Date as provided herein is subject to the performance by the Company and each of the Guarantors of their respective covenants and other obligations hereunder and to the following additional conditions:
Conditions of the Initial Purchasers’ Obligations The obligation of the Initial Purchasers to purchase and pay for the Securities shall, in their sole discretion, be subject to the satisfaction or waiver of the following conditions on or prior to the Closing Date:
(a) On the Closing Date, the Initial Purchasers shall have received opinions, dated as of the Closing Date and addressed to the Initial Purchasers, of each of Linklaters (US and UK law); De Brauw Blackstone Westbroek N.V.; (Netherlands law); De Brauw Blackstone Westbroek P.C. (Netherlands Antilles law); KPMG Meijburg & Co. (certain tax matters); Xxxxxx and Calder (Cayman Island law); Advokatfinmaet Schjødt (Norwegian law); Xxxxxxxxx Xxxxxxxx (Maltese law); Stroeter, Xxxxxxx & Ohno Advogados (Brazilian law); and Templars (Nigerian law), counsel for the Issuer and/or the Guarantors, as the case may be, in each case, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(b) On the Closing Date, the Initial Purchasers shall have received an opinion, dated as of the Closing Date and addressed to the Initial Purchasers, of Xxx Xxx Xxxxx, in-house legal counsel for the Issuers, in form and substance satisfactory to the Initial Purchasers in their reasonable discretion.
(c) On the Closing Date, the Initial Purchasers shall have received the opinion, in form and substance satisfactory to the Initial Purchasers, dated as of the Closing Date and addressed to the Initial Purchasers, of Milbank, Tweed, Xxxxxx & XxXxxx, counsel for the Initial Purchasers, with respect to certain legal matters relating to this Agreement and such other related matters as the Initial Purchasers may reasonably require. In rendering such opinion, Milbank, Tweed, Xxxxxx & XxXxxx shall have received and may rely upon such certificates and other documents and information as it may reasonably request to pass upon such matters.
(d) The Initial Purchasers shall have received from the Independent Accountants a comfort letter or letters dated the date hereof and the Closing Date, in form and substance satisfactory to counsel for the Initial Purchasers.
(e) The representations and warranties of the Issuers contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date; the statements of any Authorized Person made pursuant to any certificate delivered in accordance with the provisions hereof shall be true and correct on and as of the date made and on and as of the Closing Date; the Issuers shall have performed all covenants and agreements and satisfied all conditions on their part to be performed or satisfied hereunder at or prior to the Closing Date; and, except as described in the Memorandum (exclusive of any amendment or supplement thereto after the date hereof), subsequent to the date of the most recent financial statements in such Memorandum (whether or not audited), there shall have been no event or development, and no information shall have become known, that, individually or in the aggregate, has or would be reasonably likely to have a Material Adverse Effect.
(f) The sale of the Securities hereunder shall not be enjoined (temporarily or permanently) on the Closing Date.
(g) Subsequent to the date of the Memorandum, the conduct of the business and operations of each of the Issuers shall not have been interfered with by strike, labor dispute, slowdown, work stoppage, fire, flood, hurricane, accident or other calamity (whether or not insured) or by any court or governmental action, order or decree, and, except as otherwise stated therein, the properties of each of the Issuers shall not have sustained any loss or damage (whether or not insured) as a result of any such occurrence, except any such interference, loss or damage which would not, whether individually or in the aggregate, have or be reasonably likely to have a Material Adverse Effect.
(h) The Initial Purchasers shall have received a certificate of the Issuers, dated the Closing Date, signed on behalf of each Issuer by two Authorized Persons (except in the case of any Issuer organized under the laws of the Netherlands, in which case, such certificate shall be signed by one Authorized Person who shall be the managing director of such Issuer), to the effect that:
Conditions to Obligations of Parent The obligation of Parent to effect the Merger is also subject to the satisfaction, or waiver by Parent, at or prior to the Effective Time, of the following conditions:
Conditions of the Underwriters’ Obligations The respective obligations of the several Underwriters hereunder to purchase the Securities are subject to the accuracy, as of the date hereof, at the Closing Date and on each Option Closing Date (as if made on the Closing Date or such Option Closing Date, as applicable), of and compliance in all material respects with all representations, warranties and agreements of the Company contained herein, the performance by the Company of its obligations hereunder and the following additional conditions:
(a) If filing of the Prospectus, or any amendment or supplement thereto, or any Issuer Free Writing Prospectus, is required under the Securities Act or the Rules and Regulations, the Company shall have filed the Prospectus (or such amendment or supplement) or such Issuer Free Writing Prospectus with the Commission in the manner and within the time period so required (without reliance on Rule 424(b)(8) or 164(b) under the Securities Act); the Registration Statement shall remain effective; no stop order suspending the effectiveness of the Registration Statement or any part thereof, any Rule 462 Registration Statement, or any amendment thereof, nor suspending or preventing the use of the Time of Sale Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus shall have been issued; no proceedings for the issuance of such an order shall have been initiated or threatened; any request of the Commission or an Underwriter for additional information (to be included in the Registration Statement, the Time of Sale Disclosure Package, the Prospectus, any Issuer Free Writing Prospectus or otherwise) shall have been complied with to the Underwriters’ satisfaction.
(b) The Shares and the Warrant Shares shall be qualified for listing on the NASDAQ Capital Market.
(c) FINRA shall have raised no objection to the fairness and reasonableness of the underwriting terms and arrangements.
(d) None of the Underwriters shall have reasonably determined, and advised the Company, that the Registration Statement, the Time of Sale Disclosure Package or the Prospectus, or any amendment thereof or supplement thereto, or any Issuer Free Writing Prospectus, contains an untrue statement of fact which, in such Underwriter’s reasonable opinion, is material, or omits to state a fact which, in such Underwriter’s reasonable opinion, is material and is required to be stated therein or necessary to make the statements therein not misleading.
(e) On the Closing Date, there shall have been furnished to the Underwriters the opinion and negative assurance letter of Xxxxxxx Procter LLP, outside corporate counsel for the Company dated the Closing Date, and addressed to the Underwriters, in form and substance reasonably satisfactory to the Underwriters.
(f) On the Closing Date and on each Option Closing Date, there shall have been furnished to the Underwriters the negative assurance letter of Xxxxxxxxxx Xxxxxxx PC, counsel to the Underwriters, dated the Closing Date or the Option Closing Date, and addressed to the Underwriters, in form and substance reasonably satisfactory to the Underwriters.
(g) The Underwriters shall have received a letter of KPMG LLP on the date hereof and on the Closing Date and on each Option Closing Date, addressed to the Underwriters, confirming that they are independent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualifications of accountants under Rule 2-01 of Regulation S-X of the Commission, and confirming, as of the date of each such letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Time of Sale Disclosure Package, as of a date not prior to the date hereof or more than five days prior to the date of such letter), the conclusions and findings of said firm with respect to the financial information and other matters required by the Underwriters.
(h) On the Closing Date and on each Option Closing Date, there shall have been furnished to the Underwriters a certificate, dated the Closing Date and each Option Closing Date, and addressed to the Underwriters, signed by the chief executive officer and the chief financial officer of the Company, in their capacity as officers of the Company, to the effect that:
(i) The representations and warranties of the Company in this Agreement that are qualified by materiality or by reference to any Material Adverse Effect are true and correct in all respects, and all other representations and warranties of the Company in this Agreement are true and correct, in all material respects, as if made at and as of the Closing Date and the Option Closing Date, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Closing Date or the Option Closing Date, as applicable;
(ii) No stop order or other order (A) suspending the effectiveness of the Registration Statement or any part thereof or any amendment thereof, (B) suspending the qualification of the Securities for offering or sale, or (C) suspending or preventing the use of the Time of Sale Disclosure Package, the Prospectus or any Issuer Free Writing Prospectus, has been issued, and no proceeding for that purpose has been instituted or, to their knowledge, is contemplated by the Commission or any state or regulatory body; and
Conditions of the Obligations of the Initial Purchasers The obligations of the several Initial Purchasers to purchase and pay for the Securities as provided herein on the Closing Date shall be subject to the accuracy of the representations and warranties on the part of the Company and the Guarantors set forth in Section 1 hereof as of the date hereof and as of the Closing Date as though then made and to the timely performance by the Company of its covenants and other obligations hereunder, and to each of the following additional conditions:
Conditions of Underwriters’ Obligations The obligations of the several Underwriters hereunder are subject to the accuracy of the representations and warranties of the Company contained herein or in certificates of any officer of the Company or any of its subsidiaries delivered pursuant to the provisions hereof, to the performance by the Company of its covenants and other obligations hereunder, and to the following further conditions:
Conditions Precedent to the Obligations of the Company to sell Securities The obligation of the Company to sell Securities at the Closing is subject to the satisfaction or waiver by the Company, at or before the Closing, of each of the following conditions:
Conditions to the Initial Purchasers’ Obligations The several obligations of the Initial Purchasers to purchase and pay for the Securities on the Closing Date are subject to the following conditions:
(a) Subsequent to the execution and delivery of this Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall any notice have been given of any intended or potential downgrading or of any review for a possible change that does not indicate the direction of the possible change, in the rating accorded the Company or any of the Guarantors or any of the securities of the Company or any of the Guarantors or in the rating outlook for the Company or the Guarantors by any "nationally recognized statistical rating organization," as such term is defined for purposes of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development involving a prospective change, in the condition, financial or otherwise, or in the earnings, business or operations of the Trust and its subsidiaries, taken as a whole, from that set forth in the Final Memorandum provided to prospective purchasers of the Securities that, in your judgment, is material and adverse and that makes it, in your judgment, impracticable to market the Securities on the terms and in the manner contemplated in the Final Memorandum.
(b) The Initial Purchasers shall have received on the Closing Date a certificate from each of the Company and the Guarantors, dated the Closing Date and signed by an executive officer, trustee or managing partner, as applicable, of each of the Company and the Subsidiary Guarantors to the effect set forth in Section 5(a)(i) and to the effect that the representations and warranties of each of the Company and the Guarantors contained in this Agreement are true and correct as of the Closing Date and that each of the Company and the Guarantors has complied with all of the agreements and satisfied all of the conditions on its part to be performed or satisfied hereunder on or before the Closing Date. The officers signing and delivering such certificates may rely upon the best of his or her knowledge as to proceedings threatened.
(c) The Initial Purchasers shall have received on the Closing Date an opinion of Burnet, Xxxxxxxxx & Xxxxxx LLP, Canadian counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit A. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(d) The Initial Purchasers shall have received on the Closing Date an opinion of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, U.S. counsel for the Company and the Guarantors, dated the Closing Date, to the effect set forth in Exhibit B. Such opinion shall be rendered to the Initial Purchasers at the request of the Company and the Guarantors and shall so state therein.
(e) The Initial Purchasers shall have received on the Closing Date an opinion of Shearman & Sterling LLP, U.S. counsel for the Initial Purchasers, dated the Closing Date, to the effect set forth in Exhibit C.
(f) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from KPMG, LLP, independent public accountants for the Trust and its subsidiaries, containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(g) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from Deloitte & Touche LLP, independent public accountants for Storm Energy Ltd ("Storm") containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(h) The Initial Purchasers shall have received on each of the date hereof and the Closing Date a letter, dated the date hereof or the Closing Date, as the case may be, in form and substance satisfactory to the Initial Purchasers, from PricewaterhouseCoopers, LLP, independent public accountants for EnCana Corporation ("EnCana"), containing statements and information of the type ordinarily included in accountants' "comfort letters" to underwriters with respect to the financial statements and certain financial information contained in each Memorandum; provided that the letter delivered on the Closing Date shall use a "cut-off date" not more than three business days prior to the Closing Date.
(i) Prior to the Closing Date, (i) the Company and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser and (ii) Harvest Sask Energy Trust and the Trust shall have entered into an Amended and Restated Net Profit Interest Agreement that is reasonably satisfactory to the Initial Purchaser.
