Conditions of Manager’s Obligations. The obligations of the Manager hereunder are subject to (i) the accuracy of the representations and warranties of the Company and the Operating Partnership on the date hereof, any Representation Date, any Time of Sale and as of any Settlement Date, (ii) the performance by the Company and the Operating Partnership of their respective obligations hereunder and (iii) to the following additional conditions precedent. (i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares for offer or sale in any jurisdiction, or to the knowledge of the Company or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Basic Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading. (i) None of the Company, the Operating Partnership or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since the respective dates as of which information is given in the Prospectus, there shall not have been any change in the capital stock of the Company or OP Units or Series A Preferred Units of the Operating Partnership or long-term debt of the Company, the Operating Partnership or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the Prospectus. (c) On every date specified in Section 4(p) hereof, the Manager shall have received an opinion of Company Counsel, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 hereto, dated such date. (d) On every date specified in Section 4(q) hereof, the Manager shall have received an opinion of Maryland Counsel, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date. (e) On every date specified in Section 4(s) hereof, the Manager shall have received from KPMG LLP, or other independent accountants reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, a Comfort Letter, dated as of such date. (f) On every date specified in Section 4(o) hereof, the Manager shall have received a certificate executed on behalf of the Company, for itself and in its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 are true and correct as of the Representation Date, (ii) the Company and the Operating Partnership have performed their respective obligations under this Agreement that they are required to perform on or prior to such Representation Date, (iii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there has not occurred any Material Adverse Effect. (g) On every date specified in Section 4(r) hereof, the Manager shall have received an opinion of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Manager, or other counsel reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, dated such date. (h) All filings with the Commission required by Rule 424 and Rule 433 under the Act to have been filed by any Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 and Rule 433. (i) The Shares shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement Date. (j) The Manager shall have received from the Company all due diligence materials and information reasonably requested by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligations. (k) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland law. (l) As of the first Settlement Date, the Manager shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
Appears in 7 contracts
Samples: Equity Distribution Agreement (City Office REIT, Inc.), Equity Distribution Agreement (City Office REIT, Inc.), Equity Distribution Agreement (City Office REIT, Inc.)
Conditions of Manager’s Obligations. The obligations of the Manager hereunder are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any Representation Date, any Time applicable date referred to in Section 4(q) of Sale this Agreement and as of any each Settlement Date, (ii) the performance by the Company and the Operating Partnership of their respective its obligations hereunder and (iii) to the following additional conditions precedent.
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares for offer offering or sale in any jurisdiction, or to the knowledge of the Company or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Basic Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None of the Company, the Operating Partnership or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since Subsequent to the respective dates as of which information is given in the Registration Statement, the Basic Prospectus, there shall not have been any change the Prospectus and the Permitted Free Writing Prospectuses, if any, no material and unfavorable change, financial or otherwise (other than as referred to in the capital stock Registration Statement and Prospectus), in the business, condition or prospects of the Company or OP Units or Series A Preferred Units and each of its subsidiaries taken as a whole, in the judgment of the Operating Partnership Manager, shall occur or long-term debt become known and no transaction which is material and unfavorable to the Company (other than as referred to in the Registration Statement and Prospectus) in the judgment of the CompanyManager, shall have been entered into by the Operating Partnership Company or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective its subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the Prospectus.
(c) On The Company shall furnish to the Manager, at every date specified in Section 4(p4(r) hereofof this Agreement, the Manager shall have received an opinion of Company Counsel, or other counsel reasonably addressed to the Manager, and dated as of such date, and in form satisfactory to the Manager, in the form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 A hereto, dated such date.
(d) On every date At the dates specified in Section 4(q4(u) hereof, the Manager shall have received an opinion of Maryland Counsel, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On every date specified in Section 4(s) hereofthis Agreement, the Manager shall have received from KPMG LLP, Deloitte (for so long as financial statements audited by Deloitte are incorporated by reference into the Registration Statement) or other independent accountants reasonably Ernst & Young letters dated the date of delivery thereof and addressed to the Manager in form and substance satisfactory to the Manager, in form and substance reasonably satisfactory .
(e) The Company shall deliver to the Manager, a Comfort Letter, dated as of such date.
(f) On every date on or prior to four days after each Representation Date specified in Section 4(o4(q) hereofof this Agreement, the Manager shall have received a certificate executed on behalf of the Company, for itself and in two of its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer executive officers to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 this Agreement are true and correct as of the Representation Datesuch delivery date, (ii) the Company and the Operating Partnership have has performed their respective such of its obligations under this Agreement that they as are required to perform on be performed at or prior to before each such Representation Datedelivery date, and (iii) no stop order suspending the effectiveness conditions set forth in paragraphs (a) and (b) of Section 6 have been met. The certificate shall also state that the Shares have been duly and validly authorized by the Company, that all corporate action required to be taken for the issuance and sale of the Registration Statement Shares has been validly and sufficiently taken, and that the Company’s Board of Directors or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there other body with authority has not occurred any Material Adverse Effectrevoked, rescinded or otherwise modified or withdrawn such authorization or corporate action.
(gf) On The Manager shall have received, at every date specified in Section 4(r4(t) hereofof this Agreement, the Manager shall have received an favorable opinion of XxxxxxFried, Xxxxx Frank, Harris, Xxxxxxx & Bockius Xxxxxxxx LLP, counsel to the Manager, or other counsel reasonably dated as of such date, and in form and substance satisfactory to the Manager.
(g) The Manager shall have received, at every date specified in Section 4(s) of this Agreement, a certificate of the Secretary of the Company, dated as of such date, and in form and substance reasonably satisfactory to the Manager, dated such date.
(h) All filings with the Commission required by Rule 424 and Rule 433 under the Act to have been filed by any the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 and Rule 433424.
(i) The Shares shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement Date.
(j) The Manager shall have received from the Company all due diligence materials and information reasonably requested by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligations.
(k) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland law.
(l) As of the first Settlement Date, the Manager shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
Appears in 6 contracts
Samples: Distribution Agency Agreement (Annaly Capital Management Inc), Distribution Agency Agreement (Annaly Capital Management Inc), Distribution Agency Agreement (Annaly Capital Management Inc)
Conditions of Manager’s Obligations. The obligations of the Manager hereunder are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any Representation Date, any Time applicable date referred to in Section 4(n) of Sale this Agreement and as of any each Settlement Date, (ii) the performance by the Company and the Operating Partnership of their respective its obligations hereunder and (iii) to the following additional conditions precedent.
(i) No stop order with respect to suspending the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has under the Act shall have been issued and no proceedings for such purpose shall be pending before or threatened by the Commission, Commission and no suspension any requests for additional information on the part of the qualification Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Shares for offer or sale in any jurisdiction, or to the knowledge of the Company or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurredManager; (ii) each part of the Registration Statement and all amendments thereto any amendment thereto, at the time it became effective, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iii) none of the Basic Prospectus or the Prospectus, and no amendment as amended or supplement theretosupplemented, shall include an not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are were made, not misleading; .
(i) The Partnership and its subsidiaries shall not have sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree that could reasonably be expected to have a Material Adverse Effect, and (ii) since the respective dates as of which information is given in the Prospectus, there shall not have been any change, or any development involving a prospective change, in the partnership interests, capital stock or long-term debt of the Partnership or any of its subsidiaries that would constitute a material adverse change to the Partnership and its subsidiaries taken as a whole, or any material adverse change in the general affairs, management, financial position or results of operations of the Partnership and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, in the case of either clause (i) or this clause (ii), other than as set forth in or contemplated by the Prospectus, if in the judgment of the Manager any such change makes it impracticable or inadvisable to consummate the sale and delivery of the Units as contemplated in the Prospectus.
(c) The Partnership shall have furnished to the Manager, at every date specified in Section 4(n) of this Agreement, the written opinion of Company Counsel, or other counsel satisfactory to the Manager, dated as of such date, as specified in Section 4(o).
(d) At the dates specified in Section 4(r) of this Agreement, the Manager shall have received from the Partnership’s accountants the letters, dated as of such date, as specified in Section 4(r).
(e) The Partnership shall have delivered to the Manager, at every date specified in Section 4(n) of this Agreement (each, a “Certificate Date”), a certificate of an executive officer of the Company, which shall certify, to the best of his or her knowledge after reasonable investigation, on behalf of the Partnership that (i) the representations and warranties of the Partnership as set forth in this Agreement are true and correct as of the Certificate Date, (ii) the Partnership has performed such of its obligations under this Agreement as are to be performed at or before each such Certificate Date, (iii) no stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus under the Act has been issued and no proceedings for such purpose are pending before or threatened by the Commission, (iv) no each part of the Registration Statement and any amendment thereto, at the time it became effective, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (v) the Prospectus, together with as amended or supplemented, does not contain any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are were made, not misleading; (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(i) None of the Company, the Operating Partnership or any of their respective and its subsidiaries shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus Prospectus, any loss or interference with its business or the Properties from fire, explosion, flood or other calamity calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decreedecree that could reasonably be expected to have a Material Adverse Effect, otherwise other than as set forth in or contemplated in by the Prospectus, and (iivii) since the respective dates as of which information is given in the Prospectus, there shall has not have been any change in the capital stock of the Company or OP Units or Series A Preferred Units of the Operating Partnership or long-term debt of the Company, the Operating Partnership or any of their respective subsidiaries or any change, or any development involving a prospective change, in the partnership interests, capital stock or affecting long-term debt of the Partnership or any of its subsidiaries that would constitute a material adverse change to the Partnership and its subsidiaries taken as a whole, or any material adverse change in the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, position or results of operations of the Company, the Operating Partnership or their respective and its subsidiaries, considered taken as one enterprisea whole, otherwise whether or not arising in the ordinary course of business, other than as set forth in or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in by the Prospectus.
(cf) On The Manager shall have received, at every date specified in Section 4(p4(n) hereofof this Agreement, the Manager shall have received an written opinion of Company CounselXxxxxxx Xxxxx LLP, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 hereto, dated such date.
(d) On every date specified in Section 4(q) hereof, the Manager shall have received an opinion of Maryland Counsel, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On every date specified in Section 4(s) hereof, the Manager shall have received from KPMG LLP, or other independent accountants reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, a Comfort Letter, dated as of such date, as specified in Section 4(q).
(fg) On The Manager shall have received, at every date specified in Section 4(o4(n) hereofof this Agreement, the Manager shall have received a certificate executed of the Secretary of the Company on behalf of the Company, for itself and in its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 are true and correct dated as of the Representation Datesuch date, (ii) the Company and the Operating Partnership have performed their respective obligations under this Agreement that they are required to perform on or prior to such Representation Date, (iii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there has not occurred any Material Adverse Effect.
(g) On every date as specified in Section 4(r) hereof, the Manager shall have received an opinion of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Manager, or other counsel reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, dated such date4(p).
(h) All filings with respect to the Commission Units required by Rule 424 and Rule 433 under of the Act Rules to have been filed with the Commission by any the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 and Rule 433424.
(i) The Shares Units shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement Date.
(j) The Manager shall have received from the Company all due diligence materials and information reasonably requested by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligations.
(k) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland law.
(l) As of the first Settlement Date, the Manager shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
Appears in 5 contracts
Samples: Equity Distribution Agreement (Kinder Morgan Energy Partners L P), Equity Distribution Agreement (Kinder Morgan Energy Partners L P), Equity Distribution Agreement (Kinder Morgan Energy Partners L P)
Conditions of Manager’s Obligations. The obligations of the Manager and the Forward Purchaser hereunder and under each Confirmation, as applicable, are subject to (i) the accuracy of the representations and warranties of the Company and the Operating Partnership on the date hereof, any Representation Date, any Time of Sale and as of any Settlement Date, (ii) the performance by the Company and the Operating Partnership of their respective its obligations hereunder and under each Confirmation, as applicable, and (iii) to the following additional conditions precedent.
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares for offer or sale in any jurisdiction, or to the knowledge of the Company or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Basic Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None of the Company, the Operating Partnership or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since Subsequent to the respective dates as of which information is given in the Registration Statement, the Basic Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any, there shall not have been any change Material Adverse Effect, in the capital stock judgment of the Company or OP Units or Series A Preferred Units of the Operating Partnership or long-term debt of the Company, the Operating Partnership or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the Prospectus.
(c) On every date specified in Section 4(p4(o) hereof, the Manager and the Forward Purchaser, as applicable, shall have received an opinion of Company Counsel, or other counsel reasonably in form satisfactory to the ManagerManager and the Forward Purchaser, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 hereto, dated such date.
(d) On every date specified in Section 4(q) hereof, the Manager shall have received an opinion of Maryland Counsel, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manageras applicable, with respect to the matters set forth in Exhibit B hereto, dated as of such date.
(d) On every date specified in Section 4(o) hereof, the Manager and the Forward Purchaser shall have received an opinion of Maryland Counsel, in form satisfactory to the Manager and the Forward Purchaser, as applicable, with respect to the matters set forth in Exhibit C hereto, dated as of such date.
(e) On every date specified in Section 4(s4(q) hereof, the Manager and the Forward Purchaser, as applicable, shall have received from KPMG LLP, or other independent accountants reasonably satisfactory to the ManagerAccountants, in form and substance reasonably satisfactory to the ManagerManager and the Forward Purchaser, as applicable, a Comfort Letter, dated as of such date.
(f) On every date specified in Section 4(o4(n) hereof, the Manager and the Forward Purchaser, as applicable, shall have received a certificate executed on behalf of the Company, for itself and in its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 this Agreement are true and correct as of the Representation Date, (ii) the Company and the Operating Partnership have has performed their respective its obligations under this Agreement that they are it is required to perform on or prior to such Representation Date, and (iii) no stop order suspending the effectiveness conditions set forth in paragraphs (a) and (b) of Section 6 hereof have been met. The certificate shall also state that the Shares have been duly and validly authorized by the Company, that all corporate action required to be taken for the issuance and sale of the Registration Statement Shares has been validly and sufficiently taken, and that the Company’s Board of Directors or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there other body with authority has not occurred any Material Adverse Effectrevoked, rescinded or otherwise modified or withdrawn such authorization or corporate action.
(g) On every date specified in Section 4(r4(p) hereof, the Manager and the Forward Purchaser shall have received an opinion of Xxxxxx, Xxxxx & Bockius LLPSidley Austin llp, counsel to the Manager, or other counsel reasonably satisfactory to Manager and the ManagerForward Purchaser, in form and substance reasonably satisfactory to the ManagerManager and the Forward Purchaser, as applicable, dated as of such date.
(h) All filings with the Commission required by Rule 424 and Rule 433 under the Act to have been filed by any Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 and Rule 433424.
(i) The Shares shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement Date.
(j) The Manager shall have received from the Company all due diligence materials and information reasonably requested by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligations.
(k) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland law.
(l) As of the first Settlement Date, the Manager shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
Appears in 5 contracts
Samples: Equity Distribution Agreement (Education Realty Operating Partnership L P), Equity Distribution Agreement (Education Realty Operating Partnership L P), Equity Distribution Agreement (Education Realty Operating Partnership L P)
Conditions of Manager’s Obligations. The obligations of the Manager hereunder are subject to (i) the accuracy of the representations and warranties of the Company and the Operating Partnership on the date hereof, any Representation Date, any Time of Sale and as of any Settlement Date, (ii) the performance by the Company and the Operating Partnership of their respective its obligations hereunder and (iii) to the following additional conditions precedent.
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares for offer or sale in any jurisdiction, or to the knowledge of the Company or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Basic Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None of the Company, the Operating Partnership or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since Subsequent to the respective dates as of which information is given in the Registration Statement, the Basic Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any, there shall not have been any change Material Adverse Effect, in the capital stock judgment of the Company or OP Units or Series A Preferred Units of the Operating Partnership or long-term debt of the Company, the Operating Partnership or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the Prospectus.
(c) On every date specified in Section 4(p4(o) hereof, the Manager shall have received an opinion of Company Counsel, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 A hereto, dated as of such date.
(d) On every date specified in Section 4(q4(o) hereof, the Manager shall have received an opinion of Maryland Counsel, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated as of such date.
(e) On every date specified in Section 4(s4(q) hereof, the Manager shall have received from KPMG LLP, or other independent accountants reasonably satisfactory to the ManagerAccountants, in form and substance reasonably satisfactory to the Manager, a Comfort Letter, dated as of such date.
(f) On every date specified in Section 4(o4(n) hereof, the Manager shall have received a certificate executed on behalf of the Company, for itself and in its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 this Agreement are true and correct as of the Representation Date, (ii) the Company and the Operating Partnership have has performed their respective its obligations under this Agreement that they are it is required to perform on or prior to such Representation Date, and (iii) no stop order suspending the effectiveness conditions set forth in paragraphs (a) and (b) of Section 6 hereof have been met. The certificate shall also state that the Shares have been duly and validly authorized by the Company, that all corporate action required to be taken for the issuance and sale of the Registration Statement Shares has been validly and sufficiently taken, and that the Company’s Board of Directors or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there other body with authority has not occurred any Material Adverse Effectrevoked, rescinded or otherwise modified or withdrawn such authorization or corporate action.
(g) On every date specified in Section 4(r4(p) hereof, the Manager shall have received an opinion of Xxxxxx, Xxxxx & Bockius LLPSidley Austin llp, counsel to the Manager, or other counsel reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, dated as of such date.
(h) All filings with the Commission required by Rule 424 and Rule 433 under the Act to have been filed by any Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 and Rule 433424.
(i) The Shares shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement Date.
(j) The Manager shall have received from the Company all due diligence materials and information reasonably requested by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligations.
(k) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland law.
(l) As of the first Settlement Date, the Manager shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
Appears in 5 contracts
Samples: Equity Distribution Agreement (Education Realty Operating Partnership L P), Equity Distribution Agreement (Education Realty Trust, Inc.), Equity Distribution Agreement (Education Realty Operating Partnership L P)
Conditions of Manager’s Obligations. The obligations of the Manager hereunder are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any applicable Representation Date, any Time of Sale Date and as of any each Settlement Date, (ii) the performance by the Company and the Operating Partnership of their respective its obligations hereunder and (iii) to the following additional conditions precedent.
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares for offer offering or sale in any jurisdiction, or to the knowledge of the Company and the Operating Partnership or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Basic Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None of the Company, the Operating Partnership or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since Subsequent to the respective dates as of which information is given in the Registration Statement, the Basic Prospectus, there shall not have been any change the Prospectus and the Permitted Free Writing Prospectuses, if any, no material and unfavorable change, financial or otherwise (other than as referred to in the capital stock Registration Statement and Prospectus), in the business, condition or prospects of the Company or OP Units or Series A Preferred Units and its Subsidiaries taken as a whole, in the judgment of the Operating Partnership Manager, shall occur or long-term debt become known and no transaction which is material and unfavorable to the Company (other than as referred to in the Registration Statement and Prospectus) in the judgment of the CompanyManager, shall have been entered into by the Operating Partnership Company or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the Prospectusits Subsidiaries.
(c) On every date specified in Section 4(p) hereof, the Manager The Company shall have received an opinion of Company Counsel, or other counsel reasonably satisfactory furnish to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 hereto, dated such date.
(d) On every date specified in Section 4(q) hereof, the Manager shall have received an opinion of Maryland Counsel, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On at every date specified in Section 4(s) hereofof this Agreement, opinion(s) of Company Counsel, addressed to the Manager, and dated as of such date, and in form and substance satisfactory to the Manager, in substantially the form set forth in Exhibit A hereto or as otherwise satisfactory to the Manager.
(d) At the dates specified in Section 4(w) of this Agreement, the Manager shall have received from KPMG LLP, or other independent accountants reasonably the Accountants letters dated the date of delivery thereof and addressed to the Manager in form and substance satisfactory to the Manager, in form and substance reasonably satisfactory .
(e) The Company shall deliver to the Manager, a Comfort Letter, dated as of such date.
(f) On at every date specified in Section 4(o4(r) hereofof this Agreement, the Manager shall have received a certificate executed on behalf of the Company, for itself and in two of its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer executive officers to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 each Distribution Agreement are true and correct as of the Representation Date, (ii) the Company and the Operating Partnership have has performed their respective all of its obligations under this each Distribution Agreement that they as are required to perform on be performed at or prior to before such Representation Date, and (iii) no stop order suspending the effectiveness conditions set forth in paragraphs (a) and (b) of Section 5 of each Distribution Agreement have been met. The certificate shall also state that the Shares have been duly and validly authorized by the Company, that all corporate action required to be taken for the issuance and sale of the Registration Statement Shares has been validly and sufficiently taken, and that the Company’s Board of Directors or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there other body with authority has not occurred any Material Adverse Effectrevoked, rescinded or otherwise modified or withdrawn such authorization or corporate action.
(gf) On The Manager shall have received, at every date specified in Section 4(r4(v) hereofof this Agreement, the Manager shall have received an opinion of XxxxxxSkadden, Xxxxx Arps, Slate, Xxxxxxx & Bockius Xxxx LLP, counsel to the Manager, or other counsel reasonably dated as of such date, and in form and substance satisfactory to the Manager.
(g) The Company shall furnish to the Manager, at every date specified in Section 4(t) of this Agreement, an opinion of Tax Counsel, addressed to the Manager, and dated as of such date, and in form and substance satisfactory to the Manager, in form and substance reasonably substantially the Form set forth in Exhibit B hereto or as otherwise satisfactory to the Manager, dated such date.
(h) The Manager shall have received, at every date specified in Section 4(u) of this Agreement, a certificate of the Secretary or Assistant Secretary of the Company, dated as of such date, in form and substance satisfactory to the Manager but modified to relate to the Registration Statement and the Prospectus, in each case, as amended and supplemented to the date of such certificate.
(i) At every date specified in Section 4(x) of this Agreement, the Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request.
(j) All filings related to the offering of the Shares with the Commission required by Rule 424 and or Rule 433 under the Act to have been filed by any Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)) and Rule 433, respectively.
(ik) The Shares shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement Date.
(j) The Manager shall have received from the Company all due diligence materials and information reasonably requested by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligations.
(k) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland law.
(l) As of the first Settlement Date, the Manager shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
Appears in 4 contracts
Samples: Equity Distribution Agreement (Medical Properties Trust Inc), Equity Distribution Agreement (Medical Properties Trust Inc), Equity Distribution Agreement (Medical Properties Trust Inc)
Conditions of Manager’s Obligations. The obligations of the Manager hereunder are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any Representation Date, any Time of Sale and as of any each Settlement Date, (ii) the performance by the Company and the Operating Partnership of their respective its obligations hereunder and (iii) to the following additional conditions precedent.
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares for offer or sale in any jurisdiction, or to the knowledge of the Company or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Basic Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None of the Company, the Operating Partnership or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since Subsequent to the respective dates as of which information is given in the Registration Statement, the Basic Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any, there shall not have been any change Material Adverse Effect, in the capital stock judgment of the Company or OP Units or Series A Preferred Units of the Operating Partnership or long-term debt of the Company, the Operating Partnership or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the Prospectus.
(c) On every date specified in Section 4(p) hereof, the The Manager shall have received an opinion of Company Counsel, or other counsel reasonably in form satisfactory to the Manager, in the form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 hereto, dated A hereto required to be delivered pursuant Section 4(o) hereof on or before the date on which such datedelivery of such opinion is required pursuant to Section 4(o) hereof.
(d) On every date specified in Section 4(q) hereof, the The Manager shall have received an opinion of Maryland Counsel, or other counsel reasonably in form satisfactory to the Manager, in the form reasonably set forth in Exhibit B hereto required to be delivered pursuant Section 4(o) hereof on or before the date on which such delivery of such opinion is required pursuant to Section 4(o) hereof.
(e) The Manager shall have received from the Accountants the Comfort Letter, in form and substance satisfactory to the Manager, with respect required to be delivered pursuant Section 4(q) hereof on or before the matters set forth in Exhibit B hereto, dated date on which such date.
(e) On every date specified in delivery of such opinion is required pursuant to Section 4(s4(q) hereof, the Manager shall have received from KPMG LLP, or other independent accountants reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, a Comfort Letter, dated as of such date.
(f) On every date specified in Section 4(o) hereof, the The Manager shall have received a the certificate executed required to be delivered pursuant to Section 4(n) on behalf or before the date on which delivery of the Company, for itself and in its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer such certificate is required pursuant to Section 4(n) to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 this Agreement are true and correct as of the Representation Date, (ii) the Company and the Operating Partnership have has performed their respective such of its obligations under this Agreement that they as are required to perform on be performed at or prior to before each such Representation Date, and (iii) no stop order suspending the effectiveness conditions set forth in paragraphs (a) and (b) of Section 6 hereof have been met. The certificate shall also state that the Shares have been duly and validly authorized by the Company, that all corporate action required to be taken for the issuance and sale of the Registration Statement Shares has been validly and sufficiently taken, and that the Company’s Board of Directors or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there other body with authority has not occurred any Material Adverse Effectrevoked, rescinded or otherwise modified or withdrawn such authorization or corporate action.
(g) On every date specified in Section 4(r) hereof, the The Manager shall have received an opinion of Xxxxxx, Xxxxx & Bockius LLPDLA Piper LLP (US), counsel to the Manager, or other counsel reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, dated required to be delivered pursuant Section 4(p) hereof on or before the date on which such datedelivery of such opinion is required pursuant to Section 4(p) hereof.
(h) All filings with the Commission required by Rule 424 and Rule 433 under the Act to have been filed by any the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 and Rule 433424.
(i) The Shares shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement Date.
(j) The Manager shall have received from the Company all due diligence materials and information reasonably requested by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligations.
(k) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland law.
(l) As of the first Settlement Date, the Manager shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
Appears in 3 contracts
Samples: Equity Distribution Agreement (Education Realty Trust, Inc.), Equity Distribution Agreement (Education Realty Trust, Inc.), Equity Distribution Agreement (Education Realty Trust, Inc.)
Conditions of Manager’s Obligations. The obligations of the Manager hereunder are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any applicable Representation Date, any Time of Sale Date and as of any each Settlement Date, (ii) the performance by the Company and the Operating Partnership of their respective its obligations hereunder and (iii) to the following additional conditions precedent.
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares for offer offering or sale in any jurisdiction, or to the knowledge of the Company or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Basic Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None of the Company, the Operating Partnership or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since Subsequent to the respective dates as of which information is given in the Registration Statement, the Basic Prospectus, there shall not have been any change the Prospectus and the Permitted Free Writing Prospectuses, if any, no material and unfavorable change, financial or otherwise (other than as referred to in the capital stock Registration Statement and Prospectus), in the business, condition or prospects of the Company or OP Units or Series A Preferred Units and its Subsidiaries taken as a whole, in the judgment of the Operating Partnership Manager, shall occur or long-term debt become known and no transaction which is material and unfavorable to the Company (other than as referred to in the Registration Statement and Prospectus) in the judgment of the CompanyManager, shall have been entered into by the Operating Partnership Company or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the Prospectusits Subsidiaries.
(c) On every date specified in Section 4(p) hereof, the Manager The Company shall have received an opinion of Company Counsel, or other counsel reasonably satisfactory furnish to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 hereto, dated such date.
(d) On every date specified in Section 4(q) hereof, the Manager shall have received an opinion of Maryland Counsel, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On at every date specified in Section 4(s) hereofof this Agreement, opinion(s) of Company Counsel, addressed to the Manager, and dated as of such date, and in form and substance satisfactory to the Manager, in substantially the form set forth in Exhibit A hereto or as otherwise satisfactory to the Manager.
(d) At the dates specified in Section 4(w) of this Agreement, the Manager shall have received from KPMG LLP, or other independent accountants reasonably the Accountants letters dated the date of delivery thereof and addressed to the Manager in form and substance satisfactory to the Manager, in form and substance reasonably satisfactory .
(e) The Company shall deliver to the Manager, a Comfort Letter, dated as of such date.
(f) On at every date specified in Section 4(o4(r) hereofof this Agreement, the Manager shall have received a certificate executed on behalf of the Company, for itself and in two of its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer executive officers to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 this Agreement are true and correct as of the Representation Date, (ii) the Company and the Operating Partnership have has performed their respective such of its obligations under this Agreement that they as are required to perform on be performed at or prior to before such Representation Date, and (iii) no stop order suspending the effectiveness conditions set forth in paragraphs (a) and (b) of Section 5 have been met. The certificate shall also state that the Shares have been duly and validly authorized by the Company, that all corporate action required to be taken for the issuance and sale of the Registration Statement Shares has been validly and sufficiently taken, and that the Company’s Board of Directors or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there other body with authority has not occurred any Material Adverse Effectrevoked, rescinded or otherwise modified or withdrawn such authorization or corporate action.
(gf) On The Manager shall have received, at every date specified in Section 4(r4(v) hereofof this Agreement, the Manager shall have received an favorable opinion of XxxxxxSkadden, Xxxxx Arps, Slate, Xxxxxxx & Bockius Xxxx LLP, counsel to the Manager, or other counsel reasonably dated as of such date, and in form and substance satisfactory to the Manager.
(g) The Company shall furnish to the Manager, at every date specified in Section 4(t) of this Agreement, an opinion of Tax Counsel, addressed to the Manager, and dated as of such date, and in form and substance satisfactory to the Manager, in substantially the form set forth in Exhibit B hereto or as otherwise satisfactory to the Manager.
(h) The Manager shall have received, at every date specified in Section 4(u) of this Agreement, a certificate of the Secretary or Assistant Secretary of the Company, dated as of such date, and in form and substance satisfactory to the Manager.
(i) At every date specified in Section 4(x) of this Agreement and on such other dates as reasonably requested by the Manager, the Company shall have conducted due diligence sessions, in form and substance satisfactory to the Manager, dated such datewhich shall include the participation of representatives of the management of the Company and the Accountants of the Company.
(hj) All filings related to the offering of the Shares with the Commission required by Rule 424 and or Rule 433 under the Act to have been filed by any Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)) and Rule 433, respectively.
(ik) The Shares shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement Date.
(j) The Manager shall have received from the Company all due diligence materials and information reasonably requested by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligations.
(k) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland law.
(l) As of the first Settlement Date, the Manager shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
Appears in 3 contracts
Samples: Equity Distribution Agreement (Omega Healthcare Investors Inc), Equity Distribution Agreement (Omega Healthcare Investors Inc), Equity Distribution Agreement (Omega Healthcare Investors Inc)
Conditions of Manager’s Obligations. The obligations of the Manager Managers hereunder are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any applicable Representation Date, any Time of Sale Date and as of any each Settlement Date, (ii) the performance by the Company of its obligations hereunder, and the Operating Partnership of their respective obligations hereunder and (iii) to the following additional conditions precedent.
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares for offer offering or sale in any jurisdictionjurisdiction or, or to the knowledge of the Company Company, the Operating Partnership or the Manager Managers, of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Basic Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None of the Company, the Operating Partnership or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since Subsequent to the respective dates as of which information is given in the Registration Statement, the Basic Prospectus, there shall not have been any change the Prospectus and the Permitted Free Writing Prospectuses, if any, no material and unfavorable change, financial or otherwise (other than as referred to in the capital stock Registration Statement and Prospectus), in the business, condition or prospects of the Company or OP Units or Series A Preferred Units and the Subsidiaries taken as a whole, in the judgment of the Operating Partnership Managers, shall occur or long-term debt become known and no transaction which is material and unfavorable to the Company (other than as referred to in the Registration Statement and Prospectus), in the judgment of the CompanyManagers, shall have been entered into by the Operating Partnership Company or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the ProspectusSubsidiaries.
(c) On The Company shall furnish to the Managers, at every date specified in Section 4(p4(r) hereofof this Agreement, the Manager shall have received an opinion of Company Counsel, or other counsel reasonably addressed to the Managers, and dated as of such date, and in form satisfactory to the ManagerManagers, in the form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 A hereto, dated such date.
(d) On every date specified in Section 4(q) hereof, the Manager The Managers shall have received an opinion of Maryland Counselreceived, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On at every date specified in Section 4(s) hereofof this Agreement, the Manager shall have received from KPMG LLPfavorable opinion of Managers Counsel, or other independent accountants reasonably addressed to the Managers, and dated as of such date, and in the form and substance satisfactory to the ManagerManagers.
(e) The Managers shall have received, at every date specified in form and substance reasonably satisfactory to the ManagerSection 4(u) of this Agreement, a Comfort Lettercertificate of the Secretary of the Company, dated as of such date, and in the form and substance satisfactory to the Managers.
(f) On every date At the dates specified in Section 4(o4(v) hereofof this Agreement, the Manager Managers shall have received from the accountants letters dated the date of delivery thereof and addressed to the Managers in the form and substance satisfactory to the Managers.
(g) The Company shall deliver to the Managers, at every Representation Date specified in Section 4(q) of this Agreement, a certificate executed on behalf of the Company, for itself and in two of its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer officers to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 this Agreement are true and correct as of the Representation Date, (ii) the Company and the Operating Partnership have has performed their respective such of its obligations under this Agreement that they as are required to perform on be performed at or prior to before such Representation Date, and (iii) no stop order suspending the effectiveness conditions set forth in paragraphs (a) and (b) of Section 6 have been met. The certificate shall also state that the Shares have been duly and validly authorized by the Company, that all corporate action required to be taken for the issuance and sale of the Registration Statement Shares has been validly and sufficiently taken, and that the Company’s Board of Directors or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there other body with authority has not occurred any Material Adverse Effect.
(g) On every date specified in Section 4(r) hereofrevoked, the Manager shall have received an opinion of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Manager, rescinded or other counsel reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, dated otherwise modified or withdrawn such dateauthorization or corporate action.
(h) All filings with the Commission required by Rule 424 and or Rule 433 under the Act to have been filed by any Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)) and Rule 433, respectively.
(i) The Shares shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement Date.
(j) The Manager Common Stock shall have received be an “actively-traded security” excepted from the Company all due diligence materials and information reasonably requested requirements of Rule 101 of Regulation M under the Exchange Act by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligationssubsection (c)(1) of such rule.
(k) As If, between the Time of Sale of any Shares and the corresponding settlement of the first sale of such Shares on the scheduled Settlement Date, an event occurs which would result in the Articles failure of Supplementary shall have been accepted for record any of the conditions described in Sections 6(a) and 6(b), then the Managers may cause the Company to cancel the sale by the SDAT Company to any purchaser thereof of all or a portion of such Shares and each of the Managers and the Company shall be effective released from any of its obligations under Maryland lawSection 3(a)(vi) with respect to such Shares. The Company shall hold the Managers harmless against any loss, claim, damage or expense (including reasonable legal fees and expenses), as incurred, arising out of or in connection with the cancellation of any sale pursuant to this Section 6(k).
(l) As of the first Settlement Date, the Manager shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
Appears in 3 contracts
Samples: Equity Distribution Agreement (Duke Realty Limited Partnership/), Equity Distribution Agreement (Duke Realty Limited Partnership/), Equity Distribution Agreement (Duke Realty Limited Partnership/)
Conditions of Manager’s Obligations. The obligations of the Manager hereunder are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any applicable Representation Date, any Time of Sale Date and as of any each Settlement Date, (ii) the performance by the Company and the Operating Partnership of their respective its obligations hereunder and (iii) to the following additional conditions precedent.
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares for offer offering or sale in any jurisdiction, or to the knowledge of the Company or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Basic Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None of the Company, the Operating Partnership or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since Subsequent to the respective dates as of which information is given in the Registration Statement, the Basic Prospectus, there shall not have been any change the Prospectus and the Permitted Free Writing Prospectuses, if any, no material and unfavorable change, financial or otherwise (other than as referred to in the capital stock Registration Statement and Prospectus), in the business, condition or prospects of the Company or OP Units or Series A Preferred Units and its Subsidiaries taken as a whole, in the judgment of the Operating Partnership Manager, shall occur or long-term debt become known and no transaction which is material and unfavorable to the Company (other than as referred to in the Registration Statement and Prospectus) in the judgment of the CompanyManager, shall have been entered into by the Operating Partnership Company or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the Prospectusits Subsidiaries.
(c) On every date specified in Section 4(p) hereof, the Manager The Company shall have received an opinion of Company Counsel, or other counsel reasonably satisfactory furnish to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 hereto, dated such date.
(d) On every date specified in Section 4(q) hereof, the Manager shall have received an opinion of Maryland Counsel, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On at every date specified in Section 4(s) hereofof this Agreement, an opinion of Company Counsel, addressed to the Manager, and dated as of such date, and in form satisfactory to the Manager, in substantially the form set forth in Exhibit A hereto.
(d) At the dates specified in Section 4(w) of this Agreement, the Manager shall have received from KPMG LLP, or other independent accountants reasonably the Accountants letters dated the date of delivery thereof and addressed to the Manager in form and substance satisfactory to the Manager, in form and substance reasonably satisfactory .
(e) The Company shall deliver to the Manager, a Comfort Letter, dated as of such date.
(f) On at every date specified in Section 4(o4(r) hereofof this Agreement, the Manager shall have received a certificate executed on behalf of the Company, for itself and in two of its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer executive officers to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 this Agreement are true and correct as of the Representation Date, (ii) the Company and the Operating Partnership have has performed their respective such of its obligations under this Agreement that they as are required to perform on be performed at or prior to before such Representation Date, and (iii) no stop order suspending the effectiveness conditions set forth in paragraphs (a) and (b) of Section 5 have been met. The certificate shall also state that the Shares have been duly and validly authorized by the Company, that all corporate action required to be taken for the issuance and sale of the Registration Statement Shares has been validly and sufficiently taken, and that the Company's Board of Directors or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there other body with authority has not occurred any Material Adverse Effectrevoked, rescinded or otherwise modified or withdrawn such authorization or corporate action.
(gf) On The Manager shall have received, at every date specified in Section 4(r4(v) hereofof this Agreement, the Manager shall have received an favorable opinion of XxxxxxSkadden, Xxxxx Arps, Slate, Xxxxxxx & Bockius Xxxx LLP, counsel to the Manager, or other counsel reasonably dated as of such date, and in form and substance satisfactory to the Manager.
(g) The Company shall furnish to the Manager, at every date specified in Section 4(t) of this Agreement, an opinion of Tax Counsel, addressed to the Manager, and dated as of such date, and in form satisfactory to the Manager, in substantially the form set forth in Exhibit B hereto.
(h) The Manager shall have received, at every date specified in Section 4(u) of this Agreement, a certificate of the Secretary or Assistant Secretary of the Company, dated as of such date, and in form and substance satisfactory to the Manager.
(i) At every date specified in Section 4(x) of this Agreement and on such other dates as reasonably requested by the Manager, the Company shall have conducted due diligence sessions, in form and substance satisfactory to the Manager, dated such datewhich shall include the participation of representatives of the management of the Company and the Accountants of the Company.
(hj) All filings related to the offering of the Shares with the Commission required by Rule 424 and or Rule 433 under the Act to have been filed by any Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)) and Rule 433, respectively.
(ik) The Shares shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement Date.
(j) The Manager shall have received from the Company all due diligence materials and information reasonably requested by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligations.
(k) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland law.
(l) As of the first Settlement Date, the Manager shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
Appears in 3 contracts
Samples: Equity Distribution Agreement (Omega Healthcare Investors Inc), Equity Distribution Agreement (Omega Healthcare Investors Inc), Equity Distribution Agreement (Omega Healthcare Investors Inc)
Conditions of Manager’s Obligations. The obligations of the Manager hereunder are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any Representation Date, any Time of Sale hereof and as of any each Registration Statement Amendment Date, Company Earnings Report Date, Company Periodic Report Date, Applicable Time and Settlement Date, (ii) the performance by the Company and the Operating Partnership of their respective its obligations hereunder and (iii) to the following additional conditions precedent.:
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the 1933 Act or the 1933 Act Regulations or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, 0000 Xxx and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares for offer offering or sale in any jurisdiction, or to the knowledge of the Company or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto thereto, or modifications thereof, if any, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Basic Prospectus and all amendments or the Prospectussupplements thereto, or modifications thereof, if any, and no amendment or supplement thereto, the General Disclosure Package shall include not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; , (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(i) None of the Company, the Operating Partnership or any of their respective subsidiaries Company shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in filed the Prospectus, and any amendments and supplements thereto, with the Commission (iiincluding the information required by Rule 430B) since the respective dates as of which information is given in the Prospectusmanner and within the time period required by the 1933 Act and the 1933 Act Regulations, and any post-effective amendment thereto containing the information required by Rule 430B shall have become effective, and (v) all material required to be filed by the Company pursuant to Rule 433(d) shall have been filed with the Commission within the applicable time periods prescribed for such filings under Rule 433.
(b) In the judgment of the Manager, there shall not have been occurred any change in the capital stock of the Company or OP Units or Series A Preferred Units of the Operating Partnership or long-term debt of the Company, the Operating Partnership or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the ProspectusMaterial Adverse Effect.
(c) On The Company shall cause to be furnished to the Manager, on every date specified in Section 4(p3(n) hereof, the Manager shall have received an opinion and negative assurance letter of Company Counsel, or other counsel reasonably satisfactory Ropes & Xxxx LLP addressed to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 hereto, dated such date.
(d) On every date specified in Section 4(q) hereof, the Manager shall have received an opinion of Maryland Counsel, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On every date specified in Section 4(s) hereof, the Manager shall have received from KPMG LLP, or other independent accountants reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, a Comfort Letter, dated as of such date, in form satisfactory to the Manager and its counsel, substantially in the form of Exhibit B-1 and Exhibit B-2 attached hereto.
(fd) On The Company shall cause to be furnished to the Manager, on every date specified in Section 4(o3(o) hereof, from PricewaterhouseCoopers LLP letters dated the date of delivery thereof and addressed to the Manager in form and substance satisfactory to the Manager and its counsel, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements of the Company and its subsidiaries included or incorporated by reference in the Registration Statement.
(e) The Company shall have received furnish to the Manager, on each date specified in Section 3(m) hereof, a certificate executed on behalf of the Company, for itself and in two of its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer executive officers to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 this Agreement are true and correct as of the Representation date of such certificate (the “Certificate Date”), (ii) the Company and the Operating Partnership shall have performed their respective such of its obligations under this Agreement that they as are required to perform on be performed at or prior to before each such Representation Certificate Date, and (iii) no stop order suspending the effectiveness conditions set forth in paragraphs (a) and (b) of the Registration Statement or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to this Section 8A of the Act shall 4 have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there has not occurred any Material Adverse Effectmet.
(gf) On the date hereof, the Manager shall have received the opinion of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP dated the date hereof and addressed to the Manager in form and substance satisfactory to the Manager. On every date specified in Section 4(r3(n) hereof, the Manager shall have received an opinion a negative assurance letter of Xxxxxx, Xxxxxx Xxxxxxxx Xxxxx & Bockius Xxxxxxxx LLP, counsel to the Manager, or other counsel reasonably satisfactory to the Managerdated as of such date, in form and substance reasonably satisfactory to the Manager, dated such date.
(hg) All filings with the Commission required by Rule 424 and Rule 433 under of the 1933 Act Regulations to have been filed by any each Applicable Time or related Settlement Date Date, as the case may be, shall have been made within the applicable time period prescribed for such filing by Rule 424 and (without reliance on Rule 433424(b)(8)).
(ih) The Settlement Shares shall have been approved for listing on the NYSE, subject only to official notice of issuance at or prior issuance.
(i) The Company shall have furnished to the first Manager such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement, the Prospectus and the General Disclosure Package as of each Settlement DateDate as the Manager may reasonably request.
(j) The Manager Company shall have received from paid the Company all due diligence materials required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the 1933 Act Regulations without regard to the proviso therein and information reasonably requested by otherwise in accordance with Rules 456(b) and 457(r) of the Manager or its counsel necessary for the Manager to satisfy its due diligence obligations1933 Act Regulations.
(k) As FINRA shall not have raised any objection with respect to the fairness and reasonableness of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT terms and shall be effective arrangements under Maryland lawthis Agreement.
(l) As No amendment or supplement to the Registration Statement or Prospectus, including documents deemed to be incorporated by reference therein, shall be filed to which the Manager objects in writing.
(m) Since the later of the first Settlement Datetime of execution of this Agreement and the most recent Applicable Time, there shall not have occurred any downgrading, nor shall any notice or announcement have been given or made of (i) any intended or potential downgrading or (ii) any review or possible change that does not indicate an improvement, in the Manager shall have received a copy rating accorded any securities of or guaranteed by the Company by any “nationally recognized statistical rating organization,” as that term is defined in Rule 436(g)(2) of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company1933 Act Regulations.
Appears in 3 contracts
Samples: Distribution Agency Agreement (Affiliated Managers Group Inc), Distribution Agency Agreement (Affiliated Managers Group Inc), Distribution Agency Agreement (Affiliated Managers Group Inc)
Conditions of Manager’s Obligations. The obligations of the Manager hereunder are subject to (i) the accuracy of the representations and warranties of the Company and the Operating Partnership on the date hereof, any Representation Date, any Time of Sale and as of any Settlement Date, (ii) the performance by the Company and the Operating Partnership of their respective obligations hereunder and (iii) to the following additional conditions precedent.
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares for offer or sale in any jurisdiction, or to the knowledge of the Company or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Basic Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(i) None of the Company, the Operating Partnership or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since the respective dates as of which information is given in the Prospectus, there shall not have been any change in the capital stock of the Company or OP Units or Series A Preferred Units of the Operating Partnership or long-term debt of the Company, the Operating Partnership or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the Prospectus.
(c) On every date specified in Section 4(p) hereof, the Manager shall have received an opinion of Company Counsel, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 X-0, Xxxxxxx X-0 and Exhibit A-2 A-3 hereto, dated such date.
(d) On every date specified in Section 4(q) hereof, the Manager shall have received an opinion of Maryland Counsel, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On every date specified in Section 4(s) hereof, the Manager shall have received from KPMG LLP, or other independent accountants reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, a Comfort Letter, dated as of such date.
(f) On every date specified in Section 4(o) hereof, the Manager shall have received a certificate executed on behalf of the Company, for itself and in its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 are true and correct as of the Representation Date, (ii) the Company and the Operating Partnership have performed their respective obligations under this Agreement that they are required to perform on or prior to such Representation Date, (iii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there has not occurred any Material Adverse Effect.
(g) On every date specified in Section 4(r) hereof, the Manager shall have received an opinion of Xxxxxx, Xxxxx & Bockius Xxxxxxx LLP, counsel to the Manager, or other counsel reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, dated such date.
(h) All filings with the Commission required by Rule 424 and Rule 433 under the Act to have been filed by any Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 and Rule 433.
(i) The Shares shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement Date.
(j) The Manager shall have received from the Company all due diligence materials and information reasonably requested by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligations.
(k) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland law.
(l) As of the first Settlement Date, the Manager shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
Appears in 3 contracts
Samples: Equity Distribution Agreement (City Office REIT, Inc.), Equity Distribution Agreement (City Office REIT, Inc.), Equity Distribution Agreement (City Office REIT, Inc.)
Conditions of Manager’s Obligations. The obligations of the Manager hereunder are subject to (i) the accuracy of the representations and warranties on the part of the Company Company, the Adviser and the Operating Partnership Administrator on the date hereof, any applicable Representation Date, any as of each Time of Sale and as of any each Settlement DateDate and Time of Delivery, (ii) the performance by the Company Company, the Adviser and the Operating Partnership Administrator of their respective obligations hereunder and (iii) to the following additional conditions precedent.
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the 1933 Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the 1933 Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares for offer offering or sale in any jurisdiction, or to the knowledge of the Company Company, the Adviser, the Administrator or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iii) none of the Basic Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None of the Company, the Operating Partnership or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since Subsequent to the respective dates as of which information is given in the Registration Statement, the Basic Prospectus and the Prospectus, there shall not have been any change no material and unfavorable change, financial or otherwise (other than as referred to in the capital stock of Registration Statement and Prospectus), in the Company business, condition or OP Units or Series A Preferred Units of the Operating Partnership or long-term debt prospects of the Company, the Operating Partnership Adviser or any of their respective subsidiaries or any change, or any development involving a prospective changethe Administrator, in the judgment of the Manager, shall occur or affecting become known and no transaction which is material and unfavorable to the general affairsCompany, managementthe Adviser or the Administrator (other than as referred to in the Registration Statement and Prospectus), financial positionin the judgment of the Manager, stockholders’ equity shall have been entered into by the Company, the Adviser or unitholders’ equity, as applicable, or results of operations the Administrator.
(c) Each of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in Adviser and the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in Administrator shall deliver to the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the Prospectus.
(c) On , at every date specified in Section 4(p5(p) hereof, the Manager shall have received an opinion of Company Counsel, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 hereto, dated such date.
(d) On every date specified in Section 4(q) hereof, the Manager shall have received an opinion of Maryland Counsel, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On every date specified in Section 4(s) hereof, the Manager shall have received from KPMG LLP, or other independent accountants reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Managerthis Agreement, a Comfort Letter, dated as of such date.
(f) On every date specified in Section 4(o) hereof, certificate signed by the Manager shall have received a certificate executed on behalf Chairman of the Company, for itself and in its capacity as Board or the general partner of the Operating Partnership, by its Chief Executive Officer, President and any or Executive Vice President and the Chief Financial Officer principal financial or accounting officer of each of the Company, the Adviser and the Administrator of the Company, as the case may be, to the effect that (i) the representations and warranties of the Company and Company, the Operating Partnership Adviser or the Administrator, as the case may be, as set forth in Section 2 this Agreement are true and correct as of the Representation Date, (ii) the Company and Company, the Operating Partnership have Adviser or the Administrator, as the case may be, has performed their respective such of its obligations under this Agreement that they as are required to perform on be performed at or prior to before such Representation Date, and (iii) no stop order suspending the effectiveness conditions set forth in paragraphs (a) and (b) of Section 6 have been met. Each certificate shall also state that the Shares have been duly and validly authorized by the Company, that all corporate action required to be taken for the issuance and sale of the Registration Statement Shares has been validly and sufficiently taken, and that the Company’s board of directors or any post-effective amendment other body with authority has not revoked, rescinded or otherwise modified or withdrawn such authorization or corporate action.
(d) The Company shall furnish to the Registration Statement shall be Manager, at every date specified in effectSection 5(q) of this Agreement, opinions of Company Counsel, addressed to the Manager, and no proceedings for dated as of such purpose or pursuant to Section 8A of the Act shall have been instituted ordate, and in form and substance satisfactory to the knowledge of Manager, in substantially the form set forth in Exhibit X-0, Xxxxxxx X-0 and Exhibit A-3 hereto or as otherwise satisfactory to the Manager.
(e) The Company and shall furnish to the Operating PartnershipManager, threatened by the Commission and (ivat every date specified in Section 5(r) for the period from and including the date of this Agreement through Agreement, an opinion of Maryland Counsel, addressed to the Manager, and including dated as of such Representation Datedate, there has not occurred any Material Adverse Effectand in form and substance satisfactory to the Manager, in substantially the form set forth in Exhibit B hereto or as otherwise satisfactory to the Manager.
(f) The Company shall furnish to the Manager, at every date specified in Section 5(s) of this Agreement, an opinion of Adviser and Administrator Counsel, addressed to the Manager, and dated as of such date, and in form and substance satisfactory to the Manager, in substantially the form set forth in Exhibit C hereto or as otherwise satisfactory to the Manager.
(g) On The Manager shall have received, at every date specified in Section 4(r5(t) of this Agreement, a certificate of the Secretary or Assistant Secretary of each of the Company, the Adviser and the Administrator, dated as of such date, and in form and substance satisfactory to the Manager.
(h) The Manager shall have received, at every date specified in Section 5(u) of this Agreement, a certificate of Apollo Global Management, LLC signed by one of its senior officers, dated as of such date, in substantially the form set forth in Exhibit D hereto.
(i) The Manager shall have received, at every date specified in Section 5(v) of this Agreement, the favorable opinion of Xxxxxxx Xxxxxxx & Xxxxxxxx LLP, counsel to the Manager, dated as of such date, and in form and substance satisfactory to the Manager.
(j) At every date specified in Section 5(w) hereof, the Manager shall have received an opinion from the accountants a letter dated the date of Xxxxxx, Xxxxx & Bockius LLP, counsel delivery thereof and addressed to the Manager in form and substance satisfactory to the Manager.
(k) The Company shall furnish to the Manager, or at every date specified in Section 5(x) hereof, a certificate of the chief financial officer of the Company with respect to certain financial data contained in the Prospectus, providing “management comfort” with respect to such information, dated the date of delivery thereof and addressed to the Manager in form and substance satisfactory to the Manager.
(l) At every date specified in Section 5(y) of this Agreement and on such other counsel dates as reasonably requested by the Manager, the Company shall have conducted due diligence sessions, in form and substance satisfactory to the Manager, in form which shall include the participation of representatives of the management of the Company and substance reasonably satisfactory to the Manager, dated such dateindependent registered public accountants of the Company.
(hm) All filings related to the offering of the Shares with the Commission required by Rule 424 and Rule 433 497 under the 1933 Act to have been filed by any Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 and Rule 433under the 1933 Act.
(in) The Shares shall have been approved for listing on the NYSENASDAQ, subject only to notice of issuance at or prior to the first Settlement DateDate or the Time of Delivery, as the case may be.
(j) The Manager shall have received from the Company all due diligence materials and information reasonably requested by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligations.
(k) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland law.
(l) As of the first Settlement Date, the Manager shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
Appears in 3 contracts
Samples: Equity Distribution Agreement (Apollo Investment Corp), Equity Distribution Agreement (Apollo Investment Corp), Equity Distribution Agreement (Apollo Investment Corp)
Conditions of Manager’s Obligations. The obligations of the Manager hereunder are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any Representation Date, any Time of Sale hereof and as of any each Registration Statement Amendment Date, Company Earnings Report Date, Company Periodic Report Date, Applicable Time and Settlement Date, (ii) the performance by the Company and the Operating Partnership of their respective its obligations hereunder and (iii) to the following additional conditions precedent.:
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the 1933 Act or the 1933 Act Regulations or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, 0000 Xxx and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares for offer offering or sale in any jurisdiction, or to the knowledge of the Company or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto thereto, or modifications thereof, if any, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Basic Prospectus and all amendments or the Prospectussupplements thereto, or modifications thereof, if any, and no amendment or supplement thereto, the General Disclosure Package shall include not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; , (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(i) None of the Company, the Operating Partnership or any of their respective subsidiaries Company shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in filed the Prospectus, and any amendments and supplements thereto, with the Commission (iiincluding the information required by Rule 430B) since the respective dates as of which information is given in the Prospectusmanner and within the time period required by the 1933 Act and the 1933 Act Regulations, and any post-effective amendment thereto containing the information required by Rule 430B shall have become effective, and (v) all material required to be filed by the Company pursuant to Rule 433(d) shall have been filed with the Commission within the applicable time periods prescribed for such filings under Rule 433.
(b) In the judgment of the Manager, there shall not have been occurred any change in the capital stock of the Company or OP Units or Series A Preferred Units of the Operating Partnership or long-term debt of the Company, the Operating Partnership or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the ProspectusMaterial Adverse Effect.
(c) On The Company shall cause to be furnished to the Manager, on every date specified in Section 4(p3(n) hereofhereof (except as provided in the last sentence of Section 3(n)), the Manager shall have received an opinion and negative assurance letter of Company Counsel, or other counsel reasonably satisfactory Ropes & Xxxx LLP addressed to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 hereto, dated such date.
(d) On every date specified in Section 4(q) hereof, the Manager shall have received an opinion of Maryland Counsel, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On every date specified in Section 4(s) hereof, the Manager shall have received from KPMG LLP, or other independent accountants reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, a Comfort Letter, dated as of such date, in form satisfactory to the Manager and its counsel, substantially in the form of Exhibit B-1 and Exhibit B-2 attached hereto.
(fd) On The Company shall cause to be furnished to the Manager, on every date specified in Section 4(o3(o) hereofhereof (except as provided in the last sentence of Section 3(o)), from PricewaterhouseCoopers LLP letters dated the date of delivery thereof and addressed to the Manager in form and substance satisfactory to the Manager and its counsel, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements of the Company and its subsidiaries included or incorporated by reference in the Registration Statement.
(e) The Company shall have received furnish to the Manager, on each date specified in Section 3(m) hereof (except as provided in the last sentence of Section 3(m)), a certificate executed on behalf of the Company, for itself and in two of its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer executive officers to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 this Agreement are true and correct as of the Representation date of such certificate (the “Certificate Date”), (ii) the Company and the Operating Partnership shall have performed their respective such of its obligations under this Agreement that they as are required to perform on be performed at or prior to before each such Representation Certificate Date, and (iii) no stop order suspending the effectiveness conditions set forth in paragraphs (a) and (b) of the Registration Statement or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to this Section 8A of the Act shall 4 have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there has not occurred any Material Adverse Effectmet.
(gf) On the date hereof, the Manager shall have received the opinion of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP dated the date hereof and addressed to the Manager in form and substance satisfactory to the Manager. On every date specified in Section 4(r3(n) hereof, the Manager shall have received an opinion a negative assurance letter of Xxxxxx, Xxxxxx Xxxxxxxx Xxxxx & Bockius Xxxxxxxx LLP, counsel to the Manager, or other counsel reasonably satisfactory to the Managerdated as of such date, in form and substance reasonably satisfactory to the Manager, dated such date.
(hg) All filings with the Commission required by Rule 424 and Rule 433 under of the 1933 Act Regulations to have been filed by any each Applicable Time or related Settlement Date Date, as the case may be, shall have been made within the applicable time period prescribed for such filing by Rule 424 and (without reliance on Rule 433424(b)(8)).
(ih) The Settlement Shares shall have been approved for listing on the NYSE, subject only to official notice of issuance at or prior issuance. The Manager acknowledges that as of the date of this Agreement, 3,500,000 shares of Common Stock have been approved for listing on the NYSE and an application for listing an additional 1,000,000 shares of Common Stock has been submitted to the first NYSE.
(i) The Company shall have furnished to the Manager such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement, the Prospectus and the General Disclosure Package as of each Settlement DateDate as the Manager may reasonably request.
(j) The Manager Company shall have received from paid the Company all due diligence materials required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the 1933 Act Regulations without regard to the proviso therein and information reasonably requested by otherwise in accordance with Rules 456(b) and 457(r) of the Manager or its counsel necessary for the Manager to satisfy its due diligence obligations1933 Act Regulations.
(k) As FINRA shall not have raised any objection with respect to the fairness and reasonableness of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT terms and shall be effective arrangements under Maryland lawthis Agreement.
(l) As No amendment or supplement to the Registration Statement or Prospectus, including documents deemed to be incorporated by reference therein, shall be filed to which the Manager objects in writing.
(m) Since the later of the first Settlement Datetime of execution of this Agreement and the most recent Applicable Time, there shall not have occurred any downgrading, nor shall any notice or announcement have been given or made of (i) any intended or potential downgrading or (ii) any review or possible change that does not indicate an improvement, in the Manager shall have received a copy rating accorded any securities of or guaranteed by the Company by any “nationally recognized statistical rating organization,” as that term is defined in Rule 436(g)(2) of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company1933 Act Regulations.
Appears in 2 contracts
Samples: Distribution Agency Agreement (Affiliated Managers Group Inc), Distribution Agency Agreement (Affiliated Managers Group Inc)
Conditions of Manager’s Obligations. The obligations of the Manager hereunder are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership Oak Circle on the date hereof, any Representation Date, any Time applicable date referred to in Section 5(p) of Sale this Agreement and as of any each Settlement Date, (ii) the performance by each of the Company and the Operating Partnership Oak Circle of their respective its obligations hereunder and (iii) to the following additional conditions precedent.
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares for offer offering or sale in any jurisdiction, or to the knowledge of the Company or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Basic Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None of the Company, the Operating Partnership or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since Subsequent to the respective dates as of which information is given in the Registration Statement, the Basic Prospectus, there shall not have been any change the Prospectus and the Permitted Free Writing Prospectuses, if any, no material and unfavorable change, financial or otherwise (other than as referred to in the capital stock Registration Statement and Prospectus), in the business, condition or prospects of the Company or OP Units or Series A Preferred Units and each of its subsidiaries taken as a whole, in the judgment of the Operating Partnership Manager, shall occur or long-term debt become known and no transaction which is material and unfavorable to the Company (other than as referred to in the Registration Statement and Prospectus) in the judgment of the CompanyManager, shall have been entered into by the Operating Partnership Company or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective its subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the Prospectus.
(c) On The Company shall have furnished to the Manager, at every date Representation Date, as specified in Section 4(p5(q) hereofof this Agreement, the Manager shall have received an opinion opinions of Company Counsel, or other counsel reasonably addressed to the Manager, and dated as of such date, and in form satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters forms set forth in Exhibit A-1 and Exhibit A-2 heretohereto and the negative assurance letter of Company counsel, addressed to the Manager, and dated as of such date.
(d) On every date specified and in Section 4(q) hereof, the Manager shall have received an opinion of Maryland Counsel, or other counsel reasonably form satisfactory to the Manager, in the form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B A-3 hereto, dated such date.
(ed) On every date At the dates specified in Section 4(s5(u) hereofof this Agreement, the Manager shall have received from KPMG LLP, or other independent accountants reasonably Gxxxx Xxxxxxxx letters dated the date of delivery thereof and addressed to the Manager in form and substance satisfactory to the Manager, in form and substance reasonably satisfactory .
(e) The Company shall have delivered to the Manager, a Comfort Letteron or prior to four days after each Representation Date, dated as of such date.
(f) On every date specified in Section 4(o5(p) hereofof this Agreement, the Manager shall have received a certificate executed on behalf of the Company, for itself and in two of its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer executive officers to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 this Agreement are true and correct as of the Representation Datesuch delivery date, (ii) the Company and the Operating Partnership have has performed their respective such of its obligations under this Agreement that they as are required to perform on be performed at or prior to before each such Representation Datedelivery date, and (iii) no stop order suspending the effectiveness conditions set forth in paragraphs (a) and (b) of Section 8 have been met. The certificate shall also state that the Shares have been duly and validly authorized by the Company, that all corporate action required to be taken for the issuance and sale of the Registration Statement Shares has been validly and sufficiently taken, and that the Company’s Board of Directors or any post-effective amendment other body with authority has not revoked, rescinded or otherwise modified or withdrawn such authorization or corporate action.
(f) The Manager shall have received, at every date specified in Section 5(q) of this Agreement, the favorable written opinion of Cozen O’Xxxxxx LLP, or such other counsel to the Registration Statement shall be in effectManager (“Manager’s Counsel”), dated as of such date, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, in form and substance satisfactory to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there has not occurred any Material Adverse EffectManager.
(g) On The Manager shall have received, at every date Representation Date, as specified in Section 4(r5(s) hereofof this Agreement, a certificate of the Manager shall have received an opinion Secretary of Xxxxxxthe Company, Xxxxx & Bockius LLPdated as of such date, counsel to the Manager, or other counsel reasonably and in form and substance satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, dated such date.
(h) All filings with the Commission required by Rule 424 and Rule 433 under the Act to have been filed by any the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 and Rule 433424.
(i) The Shares shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement Date.
(j) The Manager Oak Circle shall have received from deliver to the Company all due diligence materials Manager, on the date hereof, a certificate of two of its executive officers to the effect that (i) the representations and information reasonably requested by the Manager warranties of Oak Circle as set forth in this Agreement are true and correct as of such delivery date and (ii) Oak Circle has performed such of its obligations under this Agreement as are to be performed at or its counsel necessary for the Manager to satisfy its due diligence obligationsbefore each such delivery date.
(k) As Oak Circle shall furnish to the Manager, on the date hereof, opinions of Company Counsel, addressed to the first Settlement DateManager, and dated as of such date, and in form satisfactory to the Articles Manager, in the forms set forth in Exhibit A-1 and Exhibit A-2 hereto and the negative assurance letter of Supplementary shall have been accepted for record by Company counsel, addressed to the SDAT Manager, and shall be effective under Maryland lawdated as of such date and in form satisfactory to the Manager, in the form set forth in Exhibit A-3 hereto.
(l) As of the first Settlement Date, the The Manager shall have received received, on the date hereof, a copy certificate of the Operating Partnership Agreement Amendment duly authorizedSecretary of Oak Circle, executed dated as of such date, and delivered by in form and substance satisfactory to the CompanyManager.
(m) The Manager shall have received, at every Representation Date, as specified in Sections 5(t) of this Agreement, a certificate of the Chief Financial Officer of the Company and Oak Circle, dated as of such date, and in form satisfactory to the Manager, in the form set forth in Exhibit B-1 and Exhibit B-2 hereto.
Appears in 2 contracts
Samples: Equity Distribution Agreement (Five Oaks Investment Corp.), Equity Distribution Agreement (Five Oaks Investment Corp.)
Conditions of Manager’s Obligations. The obligations of the Manager hereunder are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any Representation Date, any Time of Sale and as of any each Settlement Date, (ii) the performance by the Company and the Operating Partnership of their respective its obligations hereunder and (iii) to the following additional conditions precedent.
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares for offer or sale in any jurisdiction, or to the knowledge of the Company or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Basic Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None of the Company, the Operating Partnership or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since Subsequent to the respective dates as of which information is given in the Registration Statement, the Basic Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any, there shall not have been any change Material Adverse Effect, in the capital stock judgment of the Company or OP Units or Series A Preferred Units of the Operating Partnership or long-term debt of the Company, the Operating Partnership or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the Prospectus.
(c) On every date specified in Section 4(p) hereof, the The Manager shall have received an opinion of Company Counsel, or other counsel reasonably in form satisfactory to the Manager, in the form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 hereto, dated A hereto required to be delivered pursuant Section 4(o) hereof on or before the date on which such datedelivery of such opinion is required pursuant to Section 4(o) hereof.
(d) On every date specified in Section 4(q) hereof, the The Manager shall have received an opinion of Maryland Counsel, or other counsel reasonably in form satisfactory to the Manager, in the form reasonably set forth in Exhibit B hereto required to be delivered pursuant Section 4(o) hereof on or before the date on which such delivery of such opinion is required pursuant to Section 4(o) hereof.
(e) The Manager shall have received from the Accountants, in form and substance satisfactory to the Manager, with respect the Comfort Letter required to be delivered pursuant Section 4(q) hereof on or before the matters set forth in Exhibit B hereto, dated date on which such date.
(e) On every date specified in delivery of such opinion is required pursuant to Section 4(s4(q) hereof, the Manager shall have received from KPMG LLP, or other independent accountants reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, a Comfort Letter, dated as of such date.
(f) On every date specified in Section 4(o) hereof, the The Manager shall have received a the certificate executed required to be delivered pursuant to Section 4(n) on behalf or before the date on which delivery of the Company, for itself and in its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer such certificate is required pursuant to Section 4(n) to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 this Agreement are true and correct as of the Representation Date, (ii) the Company and the Operating Partnership have has performed their respective such of its obligations under this Agreement that they as are required to perform on be performed at or prior to before each such Representation Date, and (iii) no stop order suspending the effectiveness conditions set forth in paragraphs (a) and (b) of Section 6 hereof have been met. The certificate shall also state that the Shares have been duly and validly authorized by the Company, that all corporate action required to be taken for the issuance and sale of the Registration Statement Shares has been validly and sufficiently taken, and that the Company’s Board of Directors or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there other body with authority has not occurred any Material Adverse Effectrevoked, rescinded or otherwise modified or withdrawn such authorization or corporate action.
(g) On every date specified in Section 4(r) hereof, the The Manager shall have received an opinion of Xxxxxx, Xxxxx & Bockius LLPDLA Piper LLP (US), counsel to the Manager, or other counsel reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, dated required to be delivered pursuant Section 4(p) hereof on or before the date on which such datedelivery of such opinion is required pursuant to Section 4(p) hereof.
(h) All filings with the Commission required by Rule 424 and Rule 433 under the Act to have been filed by any the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 and Rule 433424.
(i) The Shares shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement Date.
(j) The Manager shall have received from the Company all due diligence materials and information reasonably requested by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligations.
(k) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland law.
(l) As of the first Settlement Date, the Manager shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
Appears in 2 contracts
Samples: Equity Distribution Agreement (Education Realty Trust, Inc.), Equity Distribution Agreement (Education Realty Trust, Inc.)
Conditions of Manager’s Obligations. The obligations of the Manager hereunder are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any applicable Representation Date, any Time of Sale Date and as of any each Settlement Date, ; (ii) the performance by the Company and the Operating Partnership of their respective its obligations hereunder hereunder; and (iii) to the following additional conditions precedent.
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares Units for offer offering or sale in any jurisdiction, or to the knowledge of the Company Partnership or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Basic Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None of the Company, the Operating Partnership or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since Subsequent to the respective dates as of which information is given in the Registration Statement, the Basic Prospectus, there the Prospectus and the Permitted Free Writing Prospectuses, if any, no material and unfavorable change, financial or otherwise (other than as referred to or incorporated by reference in the Registration Statement and Prospectus), in the business, condition or prospects of the Partnership and its Subsidiaries taken as a whole, in the judgment of the Manager, shall not occur or become known and no transaction which is material and unfavorable to the Partnership (other than as referred to or incorporated by reference in the Registration Statement and Prospectus) in the judgment of the Manager, shall have been any change in entered into by the capital stock of the Company or OP Units or Series A Preferred Units of the Operating Partnership or long-term debt of the Company, the Operating Partnership or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the Prospectusits Subsidiaries.
(c) On every date specified in Section 4(p) hereof, the Manager The Partnership shall have received an opinion of Company Counsel, or other counsel reasonably satisfactory furnish to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 hereto, dated such date.
(d) On at every date specified in Section 4(q) hereofof this Agreement, the Manager shall have received an opinion of Maryland Partnership Counsel, or other counsel reasonably addressed to the Manager, and dated as of such date, and in form satisfactory to the Manager, in the form reasonably set forth in Exhibit A hereto.
(d) The Partnership shall furnish to the Manager, at every date specified in Section 4(r) of this Agreement, an opinion of the General Counsel, addressed to the Manager, and dated as of such date, and in form satisfactory to the Manager, with respect to in the matters form set forth in Exhibit B hereto, dated such date.
(e) On every date At the dates specified in Section 4(s4(u) hereofof this Agreement, the Manager shall have received from KPMG LLP, or other independent accountants reasonably letters dated the date of delivery thereof and addressed to the Manager in form and substance satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, a Comfort Letter, dated as of such date.
(f) On every date At the dates specified in Section 4(o4(v) hereofof this Agreement, the Manager shall have received from (A) DT, for so long as any financial information related to the Partnership from the year ended December 31, 2010 and prior is included in or incorporated by reference the Registration Statement or the Prospectus; and (B) GT, for so long as any financial information related to Crow Creek and its subsidiaries is included in or incorporated by reference the Registration Statement or the Prospectus, letters dated the date of delivery thereof and addressed to the Manager in form and substance satisfactory to the Manager.
(g) At the dates specified in Section 4(w) of this Agreement, the Manager shall have received from Xxxxxx, Xxxxxxxxx & Associates, Inc. letters dated the date of delivery thereof and addressed to the Manager in form and substance satisfactory to the Manager.
(h) The Partnership shall deliver to the Manager, at every Representation Date specified in Section 4(p) of this Agreement, a certificate executed on behalf of the Company, for itself and in two of its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer executive officers to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 this Agreement (as amended by disclosures included or incorporated by reference in the Registration Statement and the Prospectus) are true and correct as of the Representation Date, ; (ii) the Company and the Operating Partnership have has performed their respective such of its obligations under this Agreement that they as are required to perform on be performed at or prior to before such Representation Date, ; and (iii) no stop order suspending the effectiveness conditions set forth in paragraphs (a) and (b) of Section 6 have been met. The certificate shall also state that the Units have been duly and validly authorized by the Partnership, that all limited liability company or limited partnership action, as applicable, required to be taken for the issuance and sale of the Registration Statement Units has been validly and sufficiently taken, and that the G&P LLC’s board of directors or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there other body with authority has not occurred any Material Adverse Effectrevoked, rescinded or otherwise modified or withdrawn such authorization or limited liability company or limited partnership action, as applicable.
(gi) On every date At the dates specified in Section 4(r4(x) hereofof this Agreement, the Manager shall have received an from the Chief Financial Officer of G&P LLC a certificate regarding certain financial information dated the date of delivery thereof and addressed to the Manager in form and substance satisfactory to the Manager.
(j) The Manager shall have received, at every date specified in Section 4(t) of this Agreement, the favorable opinion of Xxxxxx, Xxxxx Xxxxxx & Bockius Xxxxxxx LLP, counsel to the Manager, or other counsel reasonably dated as of such date, and in form and substance satisfactory to the Manager.
(k) The Manager shall have received, at every date specified in Section 4(s) of this Agreement, a certificate of the Secretary of G&P LLC, dated as of such date, and in form and substance reasonably satisfactory to the Manager, dated such date.
(hl) All filings with the Commission required by Rule 424 and or Rule 433 under the Act to have been filed by any Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)) and Rule 433, respectively.
(im) The Shares Units shall have been approved for listing on the NYSENASDAQ, subject only to notice of issuance at or prior to the first Settlement Date.
(j) The Manager shall have received from the Company all due diligence materials and information reasonably requested by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligations.
(k) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland law.
(l) As of the first Settlement Date, the Manager shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
Appears in 2 contracts
Samples: Equity Distribution Agreement (Eagle Rock Energy Partners L P), Equity Distribution Agreement (Eagle Rock Energy Partners L P)
Conditions of Manager’s Obligations. The obligations of the Manager hereunder are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any Representation Date, any Time applicable date referred to in Section 4(q) of Sale this Agreement and as of any each Settlement Date, (ii) the performance by the Company and the Operating Partnership of their respective its obligations hereunder and (iii) to the following additional conditions precedent.
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares for offer offering or sale in any jurisdiction, or to the knowledge of the Company or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Basic Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None of the Company, the Operating Partnership or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since Subsequent to the respective dates as of which information is given in the Registration Statement, the Basic Prospectus, there shall not have been any change the Prospectus and the Permitted Free Writing Prospectuses, if any, no material and unfavorable change, financial or otherwise (other than as referred to in the capital stock Registration Statement and Prospectus), in the business, condition or prospects of the Company and each of its Subsidiaries taken as a whole shall occur or OP Units or Series A Preferred Units of become known and no transaction which is material and unfavorable to the Operating Partnership or long-term debt of Company (other than as referred to in the Company, Registration Statement and Prospectus) shall have been entered into by the Operating Partnership Company or any of their respective subsidiaries or any changeits Subsidiaries, or any development involving a prospective change, if in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations judgment of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in Manager any such case described in clause (i) change or (ii), is in the Manager’s judgment so material and adverse as to make transaction makes it impracticable or inadvisable to proceed with consummate the offering sale and sale delivery of the Shares contemplated hereunder on the terms and in the manner as contemplated in the Prospectus.
(c) On The Company shall furnish to the Manager, at every date specified in Section 4(p4(r) hereofof this Agreement, the Manager shall have received an opinion of Company Counsel, or other counsel reasonably satisfactory addressed to the Manager, and dated as of such date, and in form reasonably satisfactory to the Manager, with respect to the matters Manager as set forth in Exhibit A-1 and Exhibit A-2 hereto, dated such date.
(d) On every date specified in Section 4(q) hereof, the Manager The Company shall have received an opinion of Maryland Counsel, or other counsel reasonably satisfactory furnish to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On at every date specified in Section 4(s) hereofof this Agreement, opinions of In-house Counsel, addressed to the Manager, and dated as of such date, and in form reasonably satisfactory to the Manager as set forth in Exhibit B-1 and Exhibit B-2 hereto.
(e) At the dates specified in Section 4(v) of this Agreement, the Manager shall have received from KPMG LLP, or other independent accountants reasonably satisfactory Ernst & Young LLP letters dated the date of delivery thereof and addressed to the Manager, Manager in form and substance reasonably satisfactory to the Manager, a Comfort Letter, dated as of such date.
(f) On The Company shall deliver to the Manager, at every date Representation Date specified in Section 4(o4(q) hereofof this Agreement, the Manager shall have received a certificate executed on behalf of the Company, for itself and in two of its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer executive officers to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 this Agreement are true and correct as of the Representation Date, (ii) the Company and the Operating Partnership have has performed their respective such of its obligations under this Agreement that they as are required to perform on be performed at or prior to before each such Representation Date, and (iii) no stop order suspending the effectiveness conditions set forth in paragraphs (a)(i) and (b) of Section 6 have been met. The certificate shall also state that the Shares have been duly and validly authorized by the Company, that all corporate action required to be taken for the issuance and sale of the Registration Statement Shares has been validly and sufficiently taken, and that the Company’s Board of Directors or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there other body with authority has not occurred any Material Adverse Effectrevoked, rescinded or otherwise modified or withdrawn such authorization or corporate action.
(g) On The Manager shall have received, at every date specified in Section 4(r4(u) hereofof this Agreement, the Manager shall have received an favorable opinion of Xxxxxx, Xxxxx Xxxxxxx Xxxxxxx & Bockius Xxxxxxxx LLP, counsel to the Manager, or other counsel reasonably dated as of such date, and in form and substance satisfactory to the Manager.
(h) The Manager shall have received, at every date specified in Section 4(t) of this Agreement, a certificate of the Secretary of the Company, dated as of such date, and in form and substance reasonably satisfactory to the Manager, dated such date.
(hi) All filings with the Commission required by Rule 424 and Rule 433 under the Act to have been filed by any the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 and Rule 433424.
(ij) The Shares shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement Date.
(j) The Manager shall have received from the Company all due diligence materials and information reasonably requested by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligations.
(k) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland law.
(l) As of the first Settlement Date, the Manager shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
Appears in 1 contract
Conditions of Manager’s Obligations. The obligations of the each Manager hereunder are subject to (ix) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any Representation applicable Delivery Date, any as of each Time of Sale and as of any each Settlement Date, (iiy) the performance by the Company and the Operating Partnership of their respective its obligations hereunder hereunder, and (iiiz) to the following additional conditions precedent.:
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Securities Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares Units for offer offering or sale in any jurisdiction, or to the knowledge of the Company Partnership or the Manager Managers of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; misleading and (iii) none of the Basic Base Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None of the Company, the Operating Partnership or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since Subsequent to the respective dates as of which information is given in the Registration Statement, the Base Prospectus and the Prospectus, there no material and unfavorable change, financial or otherwise (other than as referred to in the Registration Statement and Prospectus), in the business, condition or prospects of the Partnership and its Subsidiaries taken as a whole, in the judgment of the Managers, shall not have occurred or become known and no transaction which is material and unfavorable to the Partnership (other than as referred to in the Registration Statement and Prospectus) in the judgment of the Managers, shall have been any change in entered into by the capital stock of the Company or OP Units or Series A Preferred Units of the Operating Partnership or long-term debt of the Company, the Operating Partnership or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the Prospectusits Subsidiaries.
(c) On The Partnership shall have furnished to the Managers, at every date specified in Section 4(p4(r) hereofof this Agreement, opinions of each of Xxxxxxx Xxxxx Xxxxxx LLP and Xxxxxxxx, Xxxxxx & Xxxxxx, P.A., outside counsel for the Manager shall have received an opinion Partnership, addressed to the Managers, and dated as of Company Counselsuch date, or other counsel reasonably and in form satisfactory to the ManagerManagers, in the form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 hereto, respectively; provided, however, that in lieu of such opinions for Representation Dates subsequent to the commencement of the offering of the Units under this Agreement, counsel may furnish the Managers with a letter to the effect that the Managers may rely on a prior opinion delivered under Section 4(r) to the same extent as if it were dated the date of such dateletter (except that statements in such prior opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented at such Delivery Date).
(di) On At the dates specified in Section 4(v) of this Agreement, the Managers shall have received from Xxxxx Xxxxxxxx, one or more letters dated the date of delivery thereof and addressed to the Managers in form and substance satisfactory to the Manager and (ii) at the date specified in Section 4(w) of this Agreement, the Managers shall have received from EY, a letter dated the date of delivery thereof and addressed to the Managers in form and substance satisfactory to the Managers.
(e) The Partnership shall have delivered to the Managers, at every date Delivery Date specified in Section 4(q) hereof, the Manager shall have received an opinion of Maryland Counsel, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On every date specified in Section 4(s) hereof, the Manager shall have received from KPMG LLP, or other independent accountants reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Managerthis Agreement, a Comfort Letter, dated as certificate of such date.
(f) On every date specified in Section 4(o) hereof, the Manager shall have received a certificate executed on behalf two of the Company, for itself and in its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer executive officers to the effect that that:
(i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 this Agreement are true and correct as of the Representation DateDelivery Date with the exception of certain representations in Section 2(k), (ii) the Company and the Operating Partnership have performed their respective obligations under this Agreement that they are required to perform on or prior to such Representation Datel), (iiin) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment and (o), which shall be updated in certificates delivered pursuant to this Section 6(e)(i) at subsequent Delivery Dates as follows (which shall be modified as necessary to relate to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, Prospectus as amended and supplemented to the knowledge time of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date delivery of this Agreement through and including such Representation Date, there has not occurred any Material Adverse Effect.
(g) On every date specified in Section 4(r) hereof, the Manager shall have received an opinion of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Manager, or other counsel reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, dated such date.
(h) All filings with the Commission required by Rule 424 and Rule 433 under the Act to have been filed by any Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 and Rule 433.
(i) The Shares shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement Date.
(j) The Manager shall have received from the Company all due diligence materials and information reasonably requested by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligations.
(k) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland law.
(l) As of the first Settlement Date, the Manager shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company.certificate):
Appears in 1 contract
Conditions of Manager’s Obligations. The several obligations of the Manager Managers to purchase the Firm Shares hereunder are subject to the following conditions:
(ia) If, at the accuracy time this Agreement is executed and delivered, it is necessary for the Registration Statement or a post-effective amendment thereto to be declared effective before the offering of the representations and warranties of Shares may commence, the Company and the Operating Partnership Registration Statement or such post-effective amendment shall have become effective not later than 5:30 P.M. New York City time, on the date hereof, any Representation Dateor at such later date and time as shall be consented to by you, any Time of Sale and as of any Settlement Dateall filings, (ii) if any, required by Rules 424 and 430A under the performance by the Company and the Operating Partnership of their respective obligations hereunder and (iii) to the following additional conditions precedent.
(i) No Act shall have been timely made; no stop order with respect to suspending the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has proceeding for that purpose shall have been issued by the Commissioninstituted or, and no suspension of the qualification of the Shares for offer or sale in any jurisdiction, or to the knowledge of the Company or any Manager, threatened by the Manager Commission, and any request of the initiation Commission for additional information (to be included in the Registration Statement or threatening the Prospectuses or otherwise) shall have been complied with to your satisfaction.
(b) Subsequent to the effective date of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, that would have a Material Adverse Effect on the Company and the Subsidiaries, taken as a whole, not contemplated by the Prospectuses, which in writing your opinion, as Lead Managers of any proceedings the several Managers, would materially, adversely affect the market for any of such purposesthe Shares, has occurred; or (ii) any event or development relating to or involving the Registration Statement Company or any officer or director of the Company which makes any statement made in the Prospectuses untrue or which, in the opinion of the Company and all amendments thereto shall not contain an untrue statement its counsel or the Managers and their counsel, requires the making of a material fact any addition to or omit change in the Prospectuses in order to state a material fact required by the Act or any other law to be stated therein or necessary in order to make the statements therein not misleading; , if amending or supplementing the Prospectuses to reflect such event or development would, in your opinion, as Lead Managers for the several Managers, materially adversely affect the market for the Shares.
(iiic) none You shall have received on the Closing Date an opinion of Milbank, Tweed, Xxxxxx & XxXxxx, counsel for the Basic Prospectus or Company, dated the ProspectusClosing Date and addressed to you, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make as Lead Managers for the statements thereinseveral Managers, in the light form set forth on Schedule II hereof.
(d) You shall have received on the Closing Date an opinion of Nida & Xxxxxxx, counsel for the Company, dated the Closing Date and addressed to you, as Lead Managers of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements thereinseveral Managers, in the light form set forth on Schedule III hereof.
(e) You shall have received on the Closing Date opinions of foreign counsel, dated the Closing Date, concerning the Company's material foreign Subsidiaries in forms reasonably satisfactory to the Lead Managers of the circumstances under which they are madeseveral Managers and addressed to you as Lead Managers of the several Managers.
(f) You shall have received on the Closing Date an opinion of Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, not misleading; (v) no General Disclosure Packagecounsel for the Managers, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make dated the statements thereinClosing Date, in the light of form set forth on Schedule IV hereof.
(g) You shall have received letters addressed to you, as Lead Managers for the circumstances under which they are madeseveral Managers, not misleading; and (vi) none of dated the Permitted Free Writing Prospectusesdate hereof and the Closing Date from KPMG Peat Marwick LLP, if anyindependent certified public accountants, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, substantially in the light of the circumstances under which they are made, not misleadingforms heretofore approved by you.
(i) None No stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been taken or, to the knowledge of the Company, shall be contemplated by the Operating Partnership Commission at or prior to the Closing Date; (ii) there shall not have been any of their respective subsidiaries shall have sustained since material change in the date capital stock of the latest audited financial statements included Company nor any material increase in the Prospectus any loss short-term or interference with its business or long-term debt of the Properties Company (other than in the ordinary course of business) from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as that set forth or contemplated in the ProspectusRegistration Statement or the Prospectuses (or any amendment or supplement thereto); (iii) there shall not have been, and (ii) since the respective dates as of which information is given in the ProspectusRegistration Statement and the Prospectuses (or any amendment or supplement thereto), there shall not have been except as may otherwise be stated in the Registration Statement and Prospectuses (or any amendment or supplement thereto), any material adverse change in the capital stock of the Company condition (financial or OP Units or Series A Preferred Units of the Operating Partnership or long-term debt of the Companyother), the Operating Partnership or any of their respective subsidiaries or any changebusiness, or any development involving a prospective changeprospects, in or affecting the general affairsproperties, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, net worth or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the Prospectus.
(c) On every date specified in Section 4(p) hereof, the Manager shall have received an opinion of Company Counsel, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 hereto, dated such date.
(d) On every date specified in Section 4(q) hereof, the Manager shall have received an opinion of Maryland Counsel, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On every date specified in Section 4(s) hereof, the Manager shall have received from KPMG LLP, or other independent accountants reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, a Comfort Letter, dated as of such date.
(f) On every date specified in Section 4(o) hereof, the Manager shall have received a certificate executed on behalf of the Company, for itself and in its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer to the effect that Subsidiaries taken as a whole; and (iiv) all the representations and warranties of the Company 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, and you shall have received a certificate, dated the Closing Date and signed by the chief executive officer and the Operating Partnership chief financial officer of the Company (or such other officers as are acceptable to you), to the effect set forth in this Section 2 are true 8(h) and correct as of the Representation Date, (ii) the Company and the Operating Partnership have performed their respective obligations under this Agreement that they are required to perform on or prior to such Representation Date, (iii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there has not occurred any Material Adverse Effect.
(g) On every date specified in Section 4(r8(i) hereof, the Manager shall have received an opinion of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Manager, or other counsel reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, dated such date.
(h) All filings with the Commission required by Rule 424 and Rule 433 under the Act to have been filed by any Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 and Rule 433.
(i) The Shares Company shall not have been approved for listing on the NYSE, subject only to notice of issuance failed at or prior to the first Settlement Closing Date to have performed or complied with any of its agreements herein contained and required to be performed or complied with by it hereunder at or prior to the Closing Date.
(j) The Manager Shares shall have received from been listed or approved for listing, subject to notice of issuance, on the Company all due diligence materials and information reasonably requested by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligationsNasdaq National Market.
(k) As of The closing under the first Settlement Date, the Articles of Supplementary U.S. Underwriting Agreement shall have been accepted for record by occurred on the SDAT and shall be effective under Maryland lawClosing Date concurrently with the closing hereunder.
(l) As The Company shall have furnished or caused to be furnished to you such further certificates and documents as you shall have requested. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to you and your counsel. Any certificate or document signed by any executive officer of the first Settlement Company and delivered to you, as Lead Managers for the several Managers, or to counsel for the Managers, shall be deemed a representation and warranty by the Company to each Manager as to the statements made therein. The several obligations of the Managers to purchase Additional Shares hereunder are subject to the satisfaction on and as of any Option Closing Date of the conditions set forth in this Section 8, except that, if any Option Closing Date is other than the Closing Date, the Manager certificates, opinions and letters referred to in this Section 8 shall have received a copy be dated the Option Closing Date in question and the opinions or letters called for by paragraphs (c), (d), (e), (f) and (g) shall be revised to reflect the sale of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the CompanyAdditional Shares.
Appears in 1 contract
Conditions of Manager’s Obligations. The obligations of the Manager to sell any Shares hereunder are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any applicable Representation Date, any Time of Sale Date and as of any each Settlement Date, (ii) the performance by the Company and the Operating Partnership of their respective its obligations hereunder and (iii) to the following additional conditions precedent.
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares for offer offering or sale in any jurisdiction, or to the knowledge of the Company or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Basic Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None of the Company, the Operating Partnership or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since Subsequent to the respective dates as of which information is given in the Registration Statement, the Basic Prospectus, there shall not have been the Prospectus and any change Permitted Free Writing Prospectus, no material adverse change, financial or otherwise (other than as referred to in the capital stock Registration Statement and Prospectus), in the business, condition or prospects of the Company or OP Units or Series A Preferred Units and its Subsidiaries taken as a whole, in the judgment of the Operating Partnership Manager, shall occur or long-term debt become known and no transaction which is material and adverse to the Company (other than as referred to in the Registration Statement and Prospectus) in the judgment of the CompanyManager, shall have been entered into by the Operating Partnership Company or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the Prospectusits Subsidiaries.
(c) On The Manager shall have received, at every date specified in Section 4(p4(r) hereofof this Agreement, the Manager shall have received an opinion and negative assurance letter of Company Counsel, or other counsel reasonably satisfactory addressed to the Manager, dated as of such date, in form reasonably satisfactory to the Manager, with respect to the matters forms set forth in Exhibit A-1 Annex A and Exhibit A-2 Annex B hereto, dated such date.
(d) On The Manager shall have received, at every date specified in Section 4(q4(u) hereofof this Agreement, a letter from Ernst & Young LLP, independent public accountants, dated as of such date and addressed to the Manager shall have received an opinion of Maryland Counsel, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On every date specified in Section 4(s) hereof, the Manager shall have received from KPMG LLP, or other independent accountants reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager; provided that the obligation of the Company under this subsection (d) shall be deferred for any Suspension Period and shall recommence upon the termination of such suspension.
(e) The Manager shall have received, at every date specified in Section 4(q) of this Agreement, a Comfort Lettercertificate, dated as of such date.
(f) On every date specified in Section 4(o) hereof, the Manager shall have received a certificate executed on behalf and signed by an executive officer of the Company, for itself and in its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer to the effect that (A) (i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 this Agreement are true and correct as of the Representation Date, ; (ii) the Company and the Operating Partnership have has performed their respective such of its obligations under this Agreement that they as are required to perform on be performed at or prior to before each such Representation Date, ; (iii) no stop order suspending the effectiveness conditions set forth in subsections (a) and (b) of Section 6 have been met; (iv) the Shares have been duly and validly authorized by the Company; (v) all corporate action required to be taken for the issuance and sale of the Registration Statement Shares has been validly and sufficiently taken; and (vi) that the Company’s Board of Directors or any post-effective amendment other body with authority has not revoked, rescinded or otherwise modified or withdrawn such authorization or corporate action or (B) the statements contained in a certificate delivered pursuant to paragraph (A) which was last furnished to the Manager are true and correct as of such Representation Date as though made at and as of such date (except that such certificate shall state that such statements shall be deemed to relate to the Registration Statement shall be and the Prospectus and to all Permitted Free Writing Prospectuses, in effect, each case as amended and no supplemented to such date). The executive officer signing and delivering such certificate may rely upon the best of his or her knowledge as to proceedings for such purpose or pursuant to Section 8A of the Act threatened.
(f) The Manager shall have been instituted orreceived, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (ivat every date specified in Section 4(t) for the period from and including the date of this Agreement through Agreement, the favorable opinion and including negative assurance letter of Manager Counsel, dated as of such Representation Datedate, there has not occurred any Material Adverse Effectin the forms set forth in Annex C and Annex D hereto.
(g) On The Manager shall have received, at every date specified in Section 4(r4(s) hereofof this Agreement, a certificate of the Manager shall have received an opinion Secretary of Xxxxxxthe Company, Xxxxx & Bockius LLP, counsel to the Manager, or other counsel reasonably satisfactory to the Managerdated as of such date, in the form and substance reasonably satisfactory to the Manager, dated such dateset forth in Annex E hereto.
(h) All filings with the Commission required by Rule 424 and or Rule 433 under the Act to have been filed by any Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)) and Rule 433, respectively.
(i) The Shares shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement Date.
(j) The Manager shall have received from the Company all due diligence materials and information reasonably requested by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligations.
(k) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland law.
(l) As of the first Settlement Date, the Manager shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
Appears in 1 contract
Samples: Equity Distribution Agreement (Aecom Technology Corp)
Conditions of Manager’s Obligations. The obligations of the Manager hereunder and under any Terms Agreement are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any Representation Dateapplicable date referred to in Section 4(q) of this Agreement, the date of any Time of Sale executed Terms Agreement and as of any each Settlement DateDate and Time of Delivery, (ii) the performance by the Company and the Operating Partnership of their respective its obligations hereunder and (iii) to the following additional conditions precedent.
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares for offer offering or sale in any jurisdiction, or to the knowledge of the Company or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Basic Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Basic Prospectus or Basic Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None of the Company, the Operating Partnership or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since Subsequent to the respective dates as of which information is given in the Registration Statement, the Basic Prospectus, there the Prospectus and the Permitted Free Writing Prospectuses, if any, no material and unfavorable change, financial or otherwise (other than as referred to in the Registration Statement and Prospectus), in the business, condition or prospects of the Company and each of its Subsidiaries taken as a whole, in the judgment of the Manager, shall not occur or become known and no transaction which is material and unfavorable to the Company (other than as referred to in the Registration Statement and Prospectus) in the judgment of the Manager, shall have been entered into by the Company or any change of its Subsidiaries.
(c) The Company shall furnish to the Manager, at every date specified in Section 4(r) of this Agreement, an opinion of Company Counsel, addressed to the Manager, and dated as of such date, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and conduct its business as described in the Registration Statement, the Basic Prospectus, the Prospectus and the Permitted Free Writing Prospectuses, if any.
(ii) The Company is duly qualified to transact business in all jurisdictions in which the Company owns or leases real property, and in which the failure to qualify would have a Material Adverse Effect.
(iii) The information contained in the line items “Preferred Stock” and “Common Stock” set forth in the consolidated balance sheet as of the Company’s then most recently completed quarter or fiscal year, contained in the Company’s quarterly report on Form 10-Q or the Company’s annual report on Form 10-K, as applicable, sets forth the authorized, issued and outstanding capital stock of the Company at the indicated dates; the authorized shares of capital stock of the Company have been duly authorized; the issued and outstanding shares of the capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the certificates for the Shares or OP Units the uncertificated Shares, as the case may be, are in due and proper form; the Shares have been duly authorized and will be validly issued, fully paid and non-assessable when issued and paid for as contemplated by this Agreement and any applicable Terms Agreement; and no preemptive or Series A Preferred Units similar rights of stockholders exist with respect to any of the Operating Partnership Shares or long-term debt the issue and sale thereof.
(iv) The Registration Statement has become effective under the Act and, to such counsel’s knowledge no stop order proceedings with respect thereto have been instituted or are pending or threatened under the Act.
(v) The Registration Statement, the Prospectus and each amendment or supplement thereto and documents incorporated by reference therein comply as to form in all material respects with the requirements of the Company, Act or the Operating Partnership or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equityExchange Act, as applicable, and the applicable rules and regulations thereunder (except that such counsel need express no opinion as to the financial statements, schedules and other financial or results statistical information included or incorporated by reference therein).
(vi) The statements under the caption “Description of operations Our Common Stock” in the Registration Statement, the Basic Prospectus, the Prospectus and any Permitted Free Writing Prospectus, insofar as such statements constitute a summary of documents referred to therein or matters of law, fairly summarize in all material respects the information called for with respect to such documents and matters.
(vii) The statements under the caption “Certain Government Regulations” in the Company’s Annual Report on Form 10-K for the Company’s then most recently completed year end, as may be updated by a Current Report on Form 8-K filed by the Company with the Commission, and any amendments thereto, as to matters of law stated therein, have been reviewed by such counsel and fairly summarize in all material respects the matters described therein which are material to the business or condition (financial or otherwise) of the Company.
(viii) Such counsel does not know of any contracts or documents required to be filed as exhibits to or incorporated by reference in the Registration Statement or described in the Registration Statement or the Prospectus or any amendment or supplement thereto which are not so filed, incorporated by reference or described as required, and the Operating Partnership provisions of such contracts and documents as are summarized in the Registration Statement or their respective subsidiariesthe Prospectus or any amendment or supplement thereto are fairly summarized in all material respects.
(ix) Such counsel knows of no material legal proceedings pending or threatened against the Company, considered as one enterprise, otherwise than except as set forth or contemplated in the Registration Statement, the Basic Prospectus, the effect Prospectus and any Permitted Free Writing Prospectus.
(x) The execution and delivery of whichthis Agreement and any applicable Terms Agreement, in any such case described in clause (i) or (ii)and the consummation of the transactions herein and therein contemplated, is in including the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering issuance and sale of the Shares contemplated hereunder on and the performance by the Company of its obligations under this Agreement, do not and will not after any required notice and passage of any applicable grace period conflict with or constitute a violation of any statute or conflict with or result in a breach of any of the terms and or provisions of, constitute a default under or result in the manner contemplated imposition of any lien pursuant to (i) the charter or by-laws of the Company, (ii) any agreement or instrument known to such counsel to which the Company is a party or by which the Company or the Company’s properties may be bound, which conflict, violation, breach, default or lien could reasonably be expected to have a Material Adverse Effect or (iii) any order known to such counsel or rule or regulation of any court or governmental agency or body which in the experience of such counsel is customarily applicable to the transactions herein contemplated (except that such counsel expresses no opinion with respect to any requirement of FINRA or pursuant to any state securities or Blue Sky laws).
(xi) This Agreement and any applicable Terms Agreement have been duly authorized, executed and delivered by the Company.
(xii) The Shares conform in all material respects to the descriptions thereof contained in the Registration Statement, the Basic Prospectus, the Prospectus and any Permitted Free Writing Prospectus.
(xiii) No approval, consent, order, authorization, designation, declaration or filing by or with any regulatory, administrative or other governmental body is necessary in connection with the execution and delivery by the Company of this Agreement and the performance by the Company of its obligations hereunder (other than as may be required by the Commission or FINRA or as required by state securities and Blue Sky laws as to which such counsel need express no opinion) except such as have been obtained or made by the Company, specifying the same.
(xiv) The Company is not an “investment company” within the meaning of the Investment Company Act of 1940.
(xv) Any required filing pursuant to Rule 433 under the Act of each Permitted Free Writing Prospectus that is identified on Schedule A hereto has been made within the time period required by Rule 433(d) under the Act. In rendering such opinion, such counsel may rely, as to matters governed by laws other than the laws of the State of Ohio, the corporate laws of the State of Delaware or Federal laws, on local counsel in such jurisdictions, provided that in such case such counsel shall state that they believe that they and the Manager are justified in relying on such other counsel and such other counsel shall indicate that the Manager may rely on such opinion. As to matters of fact, to the extent they deem proper, such counsel may rely on certificates of officers of the Company and public officials so long as such counsel states that they have no reason to believe that either the Manager or they are not justified in relying on such certificates. In addition to the matters set forth above, the opinion of Xxxxxxxx, Loop & Xxxxxxxx, LLP shall also include a statement to the effect that nothing has come to the attention of such counsel which leads them to believe that (a) the Registration Statement, as of the time of its effectiveness for purposes of Section 11 of the Act, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (b) the Prospectus, as of the date of the Prospectus Supplement and as of the date of the opinion, contained or contains an untrue statement of a material fact or omitted 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 , (c) On the Basic Prospectus, as of its date, the date of this Agreement and as of the date of the opinion, in each case together with the Permitted Free Writing Prospectus identified on Schedule A hereto and with the information relating to the public offering price of the Shares as set forth on the cover page of the Prospectus, contained or contains an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (except that such counsel need express no view as to financial statements, schedules and other financial information included therein). With respect to such statement, Xxxxxxxx, Loop & Xxxxxxxx, LLP may state that this statement is based upon the procedures set forth or incorporated by reference therein, but is without independent check and verification.
(d) The Manager shall have received, at every date specified in Section 4(p4(s) hereofof this Agreement, the favorable opinion of Tax Counsel, dated as of such date, and in form and substance satisfactory to the Manager, stating that based on such counsel’s own review of the Company’s certificate of incorporation, the Company was organized and continues to be organized in conformity with the requirements for qualification as a real estate investment trust under subchapter M of the Internal Revenue Code of 1986, as amended (the “Code”), and, based on such counsel’s review of the Company’s federal income tax returns and discussions with management and independent public accountants for the Company, that the Company, taking into account operations for its taxable and fiscal years ended December 31, 2003 through its most recently completed fiscal year, satisfied the requirements for qualification and taxation as a real estate investment trust under the Code for such years and that its proposed method of operation will enable it to meet the requirements for qualification and taxation as a real estate investment trust under the Code for its current taxable and fiscal year. Furthermore, such counsel shall opine that the statements contained under the heading “U.S. Federal Income Tax Considerations” in the Registration Statement, any Basic Prospectus, the Prospectus or any Permitted Free Writing Prospectus and under the heading “Taxation” in the Company’s Annual Report on Form 10-K for the Company’s then most recently completed year end, and any amendments thereto (and any similar sections or information contained in the Registration Statement, any Basic Prospectus, the Prospectus or any Permitted Free Writing Prospectus) are correct and accurate in all material respects and present fairly and accurately the material aspects of the federal income tax treatment of the Company and of its stockholders.
(e) At the dates specified in Section 4(v) of this Agreement, the Manager shall have received an opinion from the Accountants letters dated the date of Company Counsel, or other counsel reasonably delivery thereof and addressed to the Manager in form and substance satisfactory to the Manager, in form reasonably satisfactory .
(f) The Company shall deliver to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 hereto, dated such date.
(d) On at every date specified in Section 4(q) hereof, the Manager shall have received an opinion of Maryland Counsel, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
this Agreement (e) On every date specified in Section 4(s) hereof, the Manager shall have received from KPMG LLP, or other independent accountants reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Managereach, a Comfort Letter“Certificate Date”), dated as of such date.
(f) On every date specified in Section 4(o) hereof, the Manager shall have received a certificate executed on behalf of the Company, for itself and in two of its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer executive officers to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 this Agreement are true and correct as of the Representation Certificate Date, (ii) the Company and the Operating Partnership have has performed their respective such of its obligations under this Agreement that they as are required to perform on be performed at or prior to before each such Representation Certificate Date, and (iii) no stop order suspending the effectiveness conditions set forth in paragraphs (a) and (b) of Section 6 have been met. In addition, on each Certificate Date, the certificate shall also state that the Shares have been duly and validly authorized by the Company, that all corporate action required to be taken for the issuance and sale of the Registration Statement Shares has been validly and sufficiently taken, and that the Company’s Board of Directors or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there other body with authority has not occurred any Material Adverse Effectrevoked, rescinded or otherwise modified or withdrawn such authorization or corporate action.
(g) On The Manager shall have received, at every date specified in Section 4(r4(u) hereofof this Agreement, the Manager shall have received an favorable opinion of Xxxxxx, Xxxxx & Bockius XxXxxxx LLP, counsel to the Manager, or other counsel reasonably dated as of such date, and in form and substance satisfactory to the Manager.
(h) The Manager shall have received, at every date specified in Section 4(t) of this Agreement, a certificate of the Secretary of the Company, dated as of such date, and in form and substance reasonably satisfactory to the Manager, dated such date.
(hi) All filings with the Commission required by Rule 424 and Rule 433 under the Act to have been filed by any the Settlement Date or the Time of Delivery, as the case may be, shall have been made within the applicable time period prescribed for such filing by Rule 424 and Rule 433424.
(ij) The Shares shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement DateDate or the Time of Delivery, as the case may be.
(j) The Manager shall have received from the Company all due diligence materials and information reasonably requested by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligations.
(k) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland law.
(l) As of the first Settlement Date, the Manager shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
Appears in 1 contract
Samples: Equity Distribution Agreement (Health Care Reit Inc /De/)
Conditions of Manager’s Obligations. The obligations of the Manager Managers hereunder are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any applicable Representation Date, any Time of Sale Date and as of any each Settlement Date, (ii) the performance by the Company of its obligations hereunder, and the Operating Partnership of their respective obligations hereunder and (iii) to the following additional conditions precedent.
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares for offer offering or sale in any jurisdictionjurisdiction or, or to the knowledge of the Company Company, the Operating Partnership or the Manager Managers, of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Basic Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None of the Company, the Operating Partnership or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since Subsequent to the respective dates as of which information is given in the Registration Statement, the Basic Prospectus, there shall not have been any change the Prospectus and the Permitted Free Writing Prospectuses, if any, no material and unfavorable change, financial or otherwise (other than as referred to in the capital stock Registration Statement and Prospectus), in the business, condition or prospects of the Company or OP Units or Series A Preferred Units and the Subsidiaries taken as a whole, in the judgment of the Operating Partnership Managers, shall occur or long-term debt become known and no transaction which is material and unfavorable to the Company (other than as referred to in the Registration Statement and Prospectus), in the judgment of the CompanyManagers, shall have been entered into by the Operating Partnership Company or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the ProspectusSubsidiaries.
(c) On The Company shall furnish to the Managers, at every date specified in Section 4(p4(r) hereofof this Agreement, the Manager shall have received an opinion of Company Counsel, or other counsel reasonably addressed to the Managers, and dated as of such date, and in form satisfactory to the ManagerManagers, in the form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 A hereto, dated such date.
(d) On every date specified in Section 4(q) hereof, the Manager The Managers shall have received an opinion of Maryland Counselreceived, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On at every date specified in Section 4(s) hereofof this Agreement, the Manager shall have received from KPMG LLPfavorable opinion of Managers Counsel, or other independent accountants reasonably addressed to the Managers, and dated as of such date, and in the form and substance satisfactory to the ManagerManagers.
(e) The Managers shall have received, at every date specified in form and substance reasonably satisfactory to the ManagerSection 4(u) of this Agreement, a Comfort Lettercertificate of the Secretary of the Company, dated as of such date, and in the form and substance satisfactory to the Managers.
(f) On every date At the dates specified in Section 4(o4(v) hereofof this Agreement, the Manager Managers shall have received from the accountants letters dated the date of delivery thereof and addressed to the Managers in the form and substance satisfactory to the Managers.
(g) The Company shall deliver to the Managers, at every Representation Date specified in Section 4(q) of this Agreement, a certificate executed on behalf of the Company, for itself and in two of its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer executive officers to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 this Agreement are true and correct as of the Representation Date, (ii) the Company and the Operating Partnership have has performed their respective such of its obligations under this Agreement that they as are required to perform on be performed at or prior to before such Representation Date, and (iii) no stop order suspending the effectiveness conditions set forth in paragraphs (a) and (b) of Section 6 have been met. The certificate shall also state that the Shares have been duly and validly authorized by the Company, that all corporate action required to be taken for the issuance and sale of the Registration Statement Shares has been validly and sufficiently taken, and that the Company’s Board of Directors or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there other body with authority has not occurred any Material Adverse Effect.
(g) On every date specified in Section 4(r) hereofrevoked, the Manager shall have received an opinion of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Manager, rescinded or other counsel reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, dated otherwise modified or withdrawn such dateauthorization or corporate action.
(h) All filings with the Commission required by Rule 424 and or Rule 433 under the Act to have been filed by any Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)) and Rule 433, respectively.
(i) The Shares shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement Date.
(j) The Manager Common Stock shall have received be an “actively-traded security” excepted from the Company all due diligence materials and information reasonably requested requirements of Rule 101 of Regulation M under the Exchange Act by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligationssubsection (c)(1) of such rule.
(k) As If, between the Time of Sale of any Shares and the corresponding settlement of the first sale of such Shares on the scheduled Settlement Date, an event occurs which would result in the Articles failure of Supplementary shall have been accepted for record any of the conditions described in Sections 6(a) and 6(b), then the Managers may cause the Company to cancel the sale by the SDAT Company to any purchaser thereof of all or a portion of such Shares and each of the Managers and the Company shall be effective released from any of its obligations under Maryland lawSection 3(a)(vi) with respect to such Shares. The Company shall hold the Managers harmless against any loss, claim, damage or expense (including reasonable legal fees and expenses), as incurred, arising out of or in connection with the cancellation of any sale pursuant to this Section 6(k).
(l) As of the first Settlement Date, the Manager shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
Appears in 1 contract
Conditions of Manager’s Obligations. The obligations of the Manager Managers hereunder are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any applicable Representation Date, any Time of Sale Date and as of any each Settlement Date, (ii) the performance by the Company of its obligations hereunder, and the Operating Partnership of their respective obligations hereunder and (iii) to the following additional conditions precedent.
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares for offer offering or sale in any jurisdictionjurisdiction or, or to the knowledge of the Company Company, the Operating Partnership or the Manager Managers, of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Basic Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None of the Company, the Operating Partnership or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since Subsequent to the respective dates as of which information is given in the Registration Statement, the Basic Prospectus, there shall not have been any change the Prospectus and the Permitted Free Writing Prospectuses, if any, no material and unfavorable change, financial or otherwise (other than as referred to in the capital stock Registration Statement and Prospectus), in the business, condition or prospects of the Company or OP Units or Series A Preferred Units and the Subsidiaries taken as a whole, in the judgment of the Operating Partnership Managers, shall occur or long-term debt become known and no transaction which is material and unfavorable to the Company (other than as referred to in the Registration Statement and Prospectus), in the judgment of the CompanyManagers, shall have been entered into by the Operating Partnership Company or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the ProspectusSubsidiaries.
(c) On The Company shall furnish to the Managers, at every date specified in Section 4(p4(r) hereofof this Agreement, the Manager shall have received an opinion of Company Counsel, or other counsel reasonably addressed to the Managers, and dated as of such date, and in form satisfactory to the ManagerManagers, in the form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 A hereto, dated such date.
(d) On every date specified in Section 4(q) hereof, the Manager The Managers shall have received an opinion of Maryland Counselreceived, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On at every date specified in Section 4(s) hereofof this Agreement, the Manager shall have received from KPMG LLPfavorable opinion of Managers Counsel, or other independent accountants reasonably addressed to the Managers, and dated as of such date, and in the form and substance satisfactory to the ManagerManagers.
(e) The Managers shall have received, at every date specified in form and substance reasonably satisfactory to the ManagerSection 4(u) of this Agreement, a Comfort Lettercertificate of the Secretary of the Company, dated as of such date, and in the form and substance satisfactory to the Managers.
(f) On every date At the dates specified in Section 4(o4(v) hereofof this Agreement, the Manager Managers shall have received from the accountants letters dated the date of delivery thereof and addressed to the Managers in the form and substance satisfactory to the Managers.
(g) The Company shall deliver to the Managers, at every Representation Date specified in Section 4(q) of this Agreement, a certificate executed on behalf of the Company, for itself and in two of its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer officers to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 this Agreement are true and correct as of the Representation Date, (ii) the Company and the Operating Partnership have has performed their respective such of its obligations under this Agreement that they as are required to perform on be performed at or prior to before such Representation Date, and (iii) no stop order suspending the effectiveness conditions set forth in paragraphs (a) and (b) of Section 6 have been met. The certificate shall also state that the Shares have been duly and validly authorized by the Company, that all corporate action required to be taken for the issuance and sale of the Registration Statement Shares has been validly and sufficiently taken, and that the Company’s Board of Directors or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there other body with authority has not occurred any Material Adverse Effect.
(g) On every date specified in Section 4(r) hereofrevoked, the Manager shall have received an opinion of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Manager, rescinded or other counsel reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, dated otherwise modified or withdrawn such dateauthorization or corporate action.
(h) All filings with the Commission required by Rule 424 and or Rule 433 under the Act to have been filed by any Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 and Rule 433, respectively.
(i) The Shares shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement Date.
(j) The Manager Common Stock shall have received be an “actively-traded security” excepted from the Company all due diligence materials and information reasonably requested requirements of Rule 101 of Regulation M under the Exchange Act by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligationssubsection (c)(1) of such rule.
(k) As If, between the Time of Sale of any Shares and the corresponding settlement of the first sale of such Shares on the scheduled Settlement Date, an event occurs which would result in the Articles failure of Supplementary shall have been accepted for record any of the conditions described in Sections 6(a) and 6(b), then the Managers may cause the Company to cancel the sale by the SDAT Company to any purchaser thereof of all or a portion of such Shares and each of the Managers and the Company shall be effective released from any of its obligations under Maryland lawSection 3(a)(vi) with respect to such Shares. The Company shall hold the Managers harmless against any loss, claim, damage or expense (including reasonable legal fees and expenses), as incurred, arising out of or in connection with the cancellation of any sale pursuant to this Section 6(k).
(l) As of the first Settlement Date, the Manager shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
Appears in 1 contract
Samples: Equity Distribution Agreement (Duke Realty Limited Partnership/)
Conditions of Manager’s Obligations. The obligations of the Manager hereunder are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any applicable Representation Date, any Time of Sale Date and as of any each Settlement Date, (ii) the performance by the Company and the Operating Partnership of their respective its obligations hereunder and (iii) to the following additional conditions precedent.
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A8(d), 8(dSection 8(e) or 8(e) Section 8A of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares for offer offering or sale in any jurisdiction, or to the knowledge of the Company or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Basic Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None of the Company, the Operating Partnership or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since Subsequent to the respective dates as of which information is given in the Registration Statement, the Basic Prospectus, there shall not have been any change the Prospectus and the Permitted Free Writing Prospectuses, if any, no material and unfavorable change, financial or otherwise (other than as referred to in the capital stock Registration Statement and Prospectus), in the business, condition or prospects of the Company or OP Units or Series A Preferred Units and its subsidiaries taken as a whole, in the judgment of the Operating Partnership Manager, shall occur or long-term debt become known and no transaction which is material and unfavorable to the Company (other than as referred to in the Registration Statement and Prospectus) in the judgment of the CompanyManager, shall have been entered into by the Operating Partnership Company or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective its subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the Prospectus.
(c) On every date specified in Section 4(p) hereof, the Manager The Company shall have received an opinion of Company Counsel, or other counsel reasonably satisfactory furnish to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 hereto, dated such date.
(d) On every date specified in Section 4(q) hereof, the Manager shall have received an opinion of Maryland Counsel, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On at every date specified in Section 4(s) hereofof this Agreement, opinion(s) of Company Counsel, addressed to the Manager, and dated as of such date, and in form and substance satisfactory to the Manager, in substantially the form set forth in Exhibit A hereto or as otherwise satisfactory to the Manager.
(d) At the dates specified in Section 4(w) of this Agreement, the Manager shall have received from KPMG LLP, or other independent accountants reasonably the Accountants letters dated the date of delivery thereof and addressed to the Manager in form and substance satisfactory to the Manager. In addition, in form and substance reasonably satisfactory to the Managerextent that financial statements or data in respect of Aviv and the Aviv Partnership as at any date, a Comfort Letteror in respect of any period ended prior to, dated as of such date.
(f) On every date April 1, 2015, are included or incorporated by reference in the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus, then at the dates specified in Section 4(o4(w) hereofof this Agreement, the Manager shall have received from the Accountants letters in respect of such financial statements or data dated the date of delivery thereof and addressed to the Manager in form and substance satisfactory to the Manager.
(e) The Company shall deliver to the Manager, at every date specified in Section 4(r) of this Agreement, a certificate executed on behalf of the Company, for itself and in two of its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer executive officers to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 this Agreement are true and correct as of the Representation Date, (ii) the Company and the Operating Partnership have has performed their respective such of its obligations under this Agreement that they as are required to perform on be performed at or prior to before such Representation Date, and (iii) no stop order suspending the effectiveness conditions set forth in paragraphs (a) and (b) of Section 5 have been met. The certificate shall also state that the Shares have been duly and validly authorized by the Company, that all corporate action required to be taken for the issuance and sale of the Registration Statement Shares has been validly and sufficiently taken, and that the Company’s Board of Directors or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there other body with authority has not occurred any Material Adverse Effectrevoked, rescinded or otherwise modified or withdrawn such authorization or corporate action.
(gf) On The Manager shall have received, at every date specified in Section 4(r4(v) hereofof this Agreement, the Manager shall have received an favorable opinion of XxxxxxSkadden, Xxxxx Arps, Slate, Mxxxxxx & Bockius Fxxx LLP, counsel to the Manager, or other counsel reasonably dated as of such date, and in form and substance satisfactory to the Manager.
(g) The Company shall furnish to the Manager, at every date specified in Section 4(t) of this Agreement, an opinion of Tax Counsel, addressed to the Manager, and dated as of such date, and in form and substance satisfactory to the Manager, in substantially the form set forth in Exhibit B hereto or as otherwise satisfactory to the Manager.
(h) The Manager shall have received, at every date specified in Section 4(u) of this Agreement, a certificate of the Secretary or Assistant Secretary of the Company, dated as of such date, and in form and substance satisfactory to the Manager.
(i) At every date specified in Section 4(x) of this Agreement and on such other dates as reasonably requested by the Manager, the Company shall have conducted due diligence sessions, in form and substance satisfactory to the Manager, dated such datewhich shall include the participation of representatives of the management of the Company and the Accountants of the Company.
(hj) All filings related to the offering of the Shares with the Commission required by Rule 424 and or Rule 433 under the Act to have been filed by any Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)) and Rule 433, respectively.
(ik) The Shares shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement Date.
(j) The Manager shall have received from the Company all due diligence materials and information reasonably requested by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligations.
(k) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland law.
(l) As of the first Settlement Date, the Manager shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
Appears in 1 contract
Samples: Equity Distribution Agreement (Omega Healthcare Investors Inc)
Conditions of Manager’s Obligations. The several obligations of the Manager ----------------------------------- Managers to purchase the Shares hereunder are subject to the following conditions:
(ia) the accuracy All of the representations and warranties of the Company contained in this Agreement shall be true and correct on the Operating Partnership Closing Date with the same force and effect as if made on and as of the Closing Date.
(b) If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement or a post-effective amendment thereto (including pursuant to Rule 462(b)) to be declared effective before the offering of the Shares may commence, the Registration Statement or such post-effective amendment shall have become effective not later than 5:30 P.M., New York City time, on the date hereof, any Representation Dateor at such later date and time as shall be consented to in writing by you, any Time of Sale and as of any Settlement Dateall filings, (ii) if any, required by Rules 424 and 430A under the performance by the Company and the Operating Partnership of their respective obligations hereunder and (iii) to the following additional conditions precedent.
(i) No Act shall have been timely made; no stop order with respect to suspending the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has proceeding for that purpose shall have been issued by the Commissioninstituted or, and no suspension of the qualification of the Shares for offer or sale in any jurisdiction, or to the knowledge of the Company or any Manager, threatened by the Manager Commission, and any request of the initiation Commission for additional information (to be included in the Registration Statement or threatening the Prospectuses or otherwise) shall have been complied with to your satisfaction.
(c) Subsequent to the effective date of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, that would have a Material Adverse Effect on the Company, the Subsidiaries and the Joint Ventures, taken as a whole, not contemplated by the Prospectuses, which in writing of any proceedings your opinion, as Lead Managers for any of such purposesthe several Managers, has occurred; would materially adversely affect the market for the Shares, or (ii) any event or development relating to or involving the Registration Statement Company, the Subsidiaries, the Joint Ventures or any officer or director of the Company which makes any statement made in the Prospectuses untrue or which, in the opinion of the Company and all amendments thereto shall not contain an untrue statement its counsel or the Managers and their counsel, requires the making of a material fact any addition to or omit change in the Prospectuses in order to state a material fact required by the Act or any other law to be stated therein or necessary in order to make the statements therein not misleading; , if amending or supplementing the Prospectuses to reflect such event or development would, in your opinion, as Lead Managers for the several Managers, materially adversely affect the market for the Shares.
(iiid) none You shall have received a certificate, dated the Closing Date, signed on behalf of the Basic Prospectus Company by (i) the President or a Vice Chairman and (ii) a Vice President, Vice Chairman, Secretary or Assistant Secretary, in form and substance reasonably satisfactory to you, confirming, as of the ProspectusClosing Date, the matters set forth in paragraphs (a), (b), and no amendment (c) of this Section 8, certain incumbency matters and that, as of the Closing Date, the obligations of the Company to be performed hereunder on or supplement theretoprior thereto have been duly performed.
(e) You shall have received on the Closing Date, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make opinion, dated the statements thereinClosing Date, in form and substance satisfactory to you, of Xxxxxxxx Xxxxxxxxx, counsel for the light Company, to the effect set forth in Exhibit B hereto. ---------
(f) You shall have received on the Closing Date an opinion, dated the Closing Date, in form and substance satisfactory to you, of Xxxxxxx & Berlin, special regulatory counsel to the Company, to the effect set forth in Exhibit C --------- hereto.
(g) You shall have received an opinion, dated the Closing Date, in form and substance reasonably satisfactory to you, of Xxxxxx & Xxxxxxx, counsel to the Lead Managers for the Managers, covering such matters as are customarily covered in such opinions.
(h) At the time this Agreement is executed and at the Closing Date, you shall have received from Deloitte & Touche, independent public accountants for the Company dated as of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination date of one or more this Agreement and of the Permitted Free Writing ProspectusesClosing Date, if anyrespectively, a customary comfort letter addressed to the you and no amendment or supplement theretoin form and substance satisfactory to you with respect to the financial statements and certain financial information of the Company, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, Subsidiaries and the Joint Ventures contained in the light of Registration Statement and the circumstances under which they are made, not misleading; (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(i) None No stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been taken or, to the knowledge of the Company, shall be contemplated by the Operating Partnership Commission at or any of their respective subsidiaries shall have sustained since prior to the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and Closing Date; (ii) since the respective dates as of which information is given in the Prospectus, there shall not have been any change in the capital stock of the Company or OP Units or Series A Preferred Units of nor any material increase in the Operating Partnership short-term or long-term debt of the CompanyCompany (other than in the ordinary course of business) from that set forth or contemplated in the Registration Statement or the Prospectuses; (iii) there shall not have been, since the Operating Partnership respective dates as of which information is given in the Registration Statement and the Prospectuses, except as may otherwise be stated in the Registration Statement and, any material adverse change in the condition (financial or any of their respective subsidiaries or any changeother), or any development involving a prospective changebusiness, in or affecting the general affairsprospects, managementproperties, financial position, stockholders’ equity or unitholders’ equity, as applicable, net worth or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the Prospectus.
(c) On every date specified in Section 4(p) hereof, the Manager shall have received an opinion of Company Counsel, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 hereto, dated such date.
(d) On every date specified in Section 4(q) hereof, the Manager shall have received an opinion of Maryland Counsel, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On every date specified in Section 4(s) hereof, the Manager shall have received from KPMG LLP, or other independent accountants reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, a Comfort Letter, dated as of such date.
(f) On every date specified in Section 4(o) hereof, the Manager shall have received a certificate executed on behalf of the Company, for itself and in its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer to the effect that (i) the representations and warranties of the Company and the Operating Partnership Subsidiaries taken as set forth in Section 2 are true a whole; and correct as of the Representation Date, (iiiv) the Company and the Operating Partnership Subsidiaries shall not have performed their respective obligations under this Agreement any liabilities or obligations, direct or contingent (whether or not in the ordinary course of business), that they are required material to perform on or prior to such Representation Datethe Company and the Subsidiaries, (iii) no stop order suspending the effectiveness of taken as a whole, other than those reflected in the Registration Statement or any post-effective amendment the Prospectuses.
(j) The Company shall not have failed at or prior to the Registration Statement shall Closing Date to have performed or complied with any of its agreements herein contained and required to be in effect, and no proceedings for such purpose performed or pursuant complied with by it hereunder at or prior to Section 8A of the Act Closing Date.
(k) Xxxxxx & Xxxxxxx shall have been instituted orfurnished with such documents, in addition to those set forth above, as they may reasonably require for the knowledge purpose of enabling them to review or pass upon the matters referred to in this Section 8 and in order to evidence the accuracy, completeness or satisfaction in all material respects of any of the Company and the Operating Partnershiprepresentations, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there has not occurred any Material Adverse Effectwarranties or conditions herein contained.
(g) On every date specified in Section 4(r) hereof, the Manager shall have received an opinion of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Manager, or other counsel reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, dated such date.
(h) All filings with the Commission required by Rule 424 and Rule 433 under the Act to have been filed by any Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 and Rule 433.
(il) The Shares shall have been listed or approved for listing on the NYSE, subject only to upon notice of issuance at or prior to on the first Settlement Nasdaq National Market.
(m) The closing under the U.S. Underwriting Agreement shall have occurred concurrently with the closing hereunder on the Closing Date.
(jn) The Manager Adelphia Share Purchase shall have received from occurred in accordance with the terms and conditions set forth in the letter agreement by which the Parent and the Company all due diligence materials have agreed to effectuate the Adelphia Share Purchase (the "Adelphia Share Purchase Agreement") and information reasonably requested the Adelphia Note Contribution shall have occurred in accordance with the terms and conditions set forth in the letter agreement by which the Manager or its counsel necessary for Parent and the Manager Company have agreed to satisfy its due diligence obligationseffectuate the Adelphia Note Contribution (the "Adelphia Note Contribution Agreement").
(ko) As In accordance with that certain letter of understanding dated April , 1998, among the first Settlement Company, the Parent and MCI (the "MCI Agreement"): --- (i) the MCI Warrant (as defined in the Prospectuses) and the Additional MCI Warrants shall been issued to MCI (as defined in the Prospectuses), (ii) the MCI Warrant and the Additional MCI Warrants shall have been purchased from MCI by the Parent and (iii) the Company shall have issued the Adelphia Warrant (as defined in the Prospectuses) to the Parent.
(p) Prior to the Closing Date, the Articles of Supplementary Company, the Subsidiaries and the Joint Ventures shall have been accepted furnished or caused to be furnished to you such further certificates and documents as you shall have requested. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are satisfactory in form and substance to you and your counsel. Any certificate or document signed by any officer of the Company and delivered to you, as Lead Managers for record the Managers, or to counsel for the Managers, shall be deemed a representation and warranty by the SDAT and shall be effective under Maryland lawCompany to each Manager as to the statements made therein.
(l) As of the first Settlement Date, the Manager shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
Appears in 1 contract
Samples: International Underwriting Agreement (Hyperion Telecommunications Inc)
Conditions of Manager’s Obligations. The obligations of the each Manager hereunder are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any applicable Representation Date, any Time of Sale Date and as of any each Settlement Date, (ii) the performance by the Company and the Operating Partnership of their respective its obligations hereunder and (iii) to the following additional conditions precedent.
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares Units for offer offering or sale in any jurisdiction, or to the knowledge of the Company Partnership or the Manager Managers of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Basic Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None of the Company, the Operating Partnership or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since Subsequent to the respective dates as of which information is given in the Registration Statement, the Basic Prospectus and the Prospectus, there shall not have been any change no material and unfavorable change, financial or otherwise (other than as referred to in the capital stock Registration Statement and Prospectus), in the business, condition or prospects of the Company or OP Units or Series A Preferred Units of the Operating Partnership or long-term debt of the CompanyPartnership, the Operating Company and the Subsidiaries taken as a whole shall occur or become known and no transaction which is material and unfavorable to the Partnership (other than as referred to in the Registration Statement and Prospectus) shall have been entered into by the Partnership, the Operating Company or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the ProspectusSubsidiaries.
(c) On every date The Partnership shall furnish to the Managers, at the dates specified in Section 4(p4(r) hereofof this Agreement (subject to the proviso at the end of Section 4), the Manager shall have received an opinion of Company Partnership Counsel, or other counsel reasonably satisfactory addressed to the ManagerManagers, and dated the date of delivery thereof, and in form reasonably satisfactory to the ManagerManagers, with respect to covering substantially the matters set forth in Exhibit A-1 and Exhibit A-2 A hereto, dated such date.
(d) On every At the dates specified in Section 4(u) of this Agreement (subject to the proviso at the end of Section 4), the Managers shall have received from the Accountants letters dated the date of delivery thereof and addressed to the Managers.
(e) At the dates specified in Section 4(v) of this Agreement (subject to the proviso at the end of Section 4), the Managers shall have received from the Reserve Engineers a letter dated the date of delivery thereof and addressed to the Managers.
(f) The Partnership shall deliver to the Managers, at the dates specified in Section 4(q) hereof, the Manager shall have received an opinion of Maryland Counsel, or other counsel reasonably satisfactory this Agreement (subject to the Manager, in form reasonably satisfactory to proviso at the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On every date specified in end of Section 4(s) hereof, the Manager shall have received from KPMG LLP, or other independent accountants reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager4), a Comfort Letter, dated as certificate of such date.
(f) On every date specified in Section 4(o) hereof, the Manager shall have received a certificate executed on behalf two of the Company, for itself and in its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer executive officers to the effect that that, to their knowledge, (i) except as set forth on Schedule A to such certificate, the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 this Agreement are true and correct as of the Representation Date, (ii) the Company and the Operating Partnership have has performed their respective such of its obligations under this Agreement that they as are required to perform on be performed at or prior to before such Representation Date, and (iii) no stop order suspending the effectiveness conditions set forth in paragraphs (a) and (b) of the Registration Statement or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall 6 have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there has not occurred any Material Adverse Effectmet.
(g) On every date The Managers shall have received, at the dates specified in Section 4(r4(t) hereofof this Agreement (subject to the proviso at the end of Section 4), the Manager shall have received an opinion of Xxxxxx, Xxxxx Xxxxxx & Bockius LLP, Xxxxxx L.L.P. counsel to the Manager, or other counsel reasonably satisfactory to dated as of the Managerdate of delivery thereof, and in form and substance reasonably satisfactory to the Manager, dated such dateManagers.
(h) The Managers shall have received, at the dates specified in Section 4(s) of this Agreement (subject to the proviso at the end of Section 4), a certificate of the Secretary of the General Partner, dated as of the date of delivery thereof, and in form and substance reasonably satisfactory to the Managers.
(i) All filings with the Commission with respect to the Units required by Rule 424 and or Rule 433 under the Act to have been filed by any Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)) and Rule 433, respectively.
(ij) The Shares Units shall have been approved for listing on the NYSENASDAQ, subject only to notice of issuance at or prior to the first Settlement Date.
(j) The Manager shall have received from the Company all due diligence materials and information reasonably requested by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligations.
(k) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland law.
(l) As of the first Settlement Date, the Manager shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
Appears in 1 contract
Samples: Equity Distribution Agreement (Memorial Production Partners LP)
Conditions of Manager’s Obligations. The obligations of the each Manager hereunder are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any applicable Representation Date, any as of each Time of Sale and as of any each Settlement Date, (ii) the performance by the Company and the Operating Partnership of their respective its obligations hereunder and (iii) to the following additional conditions precedent.:
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares Units for offer offering or sale in any jurisdiction, or to the knowledge of the Company Partnership or the Manager Managers of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iii) none of the Basic Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None of the Company, the Operating Partnership or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since Subsequent to the respective dates as of which information is given in the Registration Statement, the Basic Prospectus and the Prospectus, there no material and unfavorable change, financial or otherwise (other than as referred to in the Registration Statement and Prospectus), in the business, condition or prospects of the Partnership and its Subsidiaries taken as a whole, in the judgment of the Managers, shall not have occurred or become known and no transaction which is material and unfavorable to the Partnership (other than as referred to in the Registration Statement and Prospectus) in the judgment of the Managers, shall have been any change in entered into by the capital stock of the Company or OP Units or Series A Preferred Units of the Operating Partnership or long-term debt of the Company, the Operating Partnership or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the Prospectusits Subsidiaries.
(c) On The Partnership shall have furnished to the Managers, at every date specified in Section 4(p4(r) hereofof this Agreement, the Manager shall have received an opinion of Company Partnership Counsel, or other counsel reasonably addressed to the Managers, and dated as of such date, and in form satisfactory to the ManagerManagers, in the form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 A hereto, dated such date.
(d) On every date specified in Section 4(q) hereof, the Manager The Partnership shall have received an opinion of Maryland Counsel, or other counsel reasonably satisfactory furnished to the ManagerManagers, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On at every date specified in Section 4(s) hereofof this Agreement, the Manager shall have received from KPMG LLPan opinion of Thomas P. Xxxxx, or other independent accountants reasonably satisfactory Xxxx Xresident, General Counsel and Secretary of ETP LLC, addressed to the ManagerManagers, in form and substance reasonably satisfactory to the Manager, a Comfort Letter, dated as of such date, and in form satisfactory to the Managers, in the form set forth in Exhibit B hereto.
(e) At the dates specified in Section 4(v) of this Agreement, the Managers shall have received from the Accountants, and any other independent accountants, letters dated the date of delivery thereof and addressed to the Managers in form and substance satisfactory to the Managers.
(f) On The Partnership shall have delivered to the Managers, at every date Representation Date specified in Section 4(o4(q) hereofof this Agreement, the Manager shall have received a certificate executed on behalf of the Company, for itself and in its capacity as the general partner two of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer ETP LLC’s executive officers to the effect that that:
(i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 this Agreement are true and correct as of the Representation DateDate with the exception of the representations in Section 2(h), (i), (l) and (v), of which the representation in Section 2(h), (i), (l) and (v) shall be updated in certificates delivered pursuant to this Section 6(f) at subsequent Representation Dates as follows:
(A) The General Partner is the sole general partner of the Partnership with an approximate ____ % general partner interest in the Partnership as of the date hereof.
(B) As of the date hereof, the limited partners of the Partnership own ____________ Common Units, _____________ Class E Units, ________ Class G Units and _____________ Class H Units, representing an approximate ____% limited partner interest in the Partnership, __________ Common Units of which are owned by ETE or ETE Common Holdings, LLC, _____ Class E Units of which are owned by Heritage Holdings, Inc., _______ Class G Units of which are owned by subsidiaries of Sunoco, Inc. and _____________ Class H Units of which are owned by ETE Common Holdings, LLC.
(C) As of the date hereof, the Partnership has no direct or indirect subsidiaries (as defined under the Act) other than the subsidiaries listed in Schedule A hereto (collectively, sometimes referred to herein as the “Subsidiaries”); other than the Subsidiaries, the Partnership does not own, directly or indirectly, any shares of stock or any other equity interests or long-term debt securities of any corporation, firm, partnership, joint venture, association or other entity; complete and correct copies of the formation and governing documents of each of the ETP Entities and all amendments thereto have been delivered to the Managers; and each of the ETP Entities is in compliance with the laws, orders, rules, regulations and directives issued or administered by such jurisdictions, except where the failure to be in compliance would not, individually or in the aggregate, have a Material Adverse Effect. Attached hereto as Schedule B is a listing of each of the Subsidiaries of the Partnership that is a "significant subsidiary" as defined in Rule 1-02 of Regulation S‑X as of the date hereof (collectively, the “Material Subsidiaries”).
(D) Grant Thxxxxxx XXX, xxo have audited the consolidated financial statements of the Partnership as of and for the years ended ________ , are independent registered public accountants as required by the Act and by the rules of the Public Company Accounting Oversight Board (the “PCAOB”); and (ii) _____, who have audited the consolidated financial statements of ____________ and its subsidiaries as of ____________, are independent registered public accountants as required by the Act and by the rules of the PCAOB.
(ii) the Company and the Operating Partnership have has performed their respective such of its obligations under this Agreement that they as are required to perform on be performed at or prior to before such Representation Date, and
(iii) no stop order suspending the effectiveness conditions set forth in paragraphs (a) and (b) of Section 6 have been met. The certificate shall also state that the Units have been duly and validly authorized by the Partnership, that all partnership action required to be taken for the issuance and sale of the Registration Statement Units has been validly and sufficiently taken, and that ETP LLC’s Board of Directors or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there other body with authority has not occurred any Material Adverse Effectrevoked, rescinded or otherwise modified or withdrawn such authorization or partnership action.
(g) On The Managers shall have received, at every date specified in Section 4(r4(u) hereofof this Agreement, the Manager shall have received an favorable opinion of XxxxxxAndrews Xxxxx XXX, Xxxxx & Bockius LLP, counsel xxxxxxl to the ManagerManagers, or other counsel reasonably satisfactory to the Managerdated as of such date, and in form and substance reasonably satisfactory to the Manager, dated such dateManagers.
(h) The Managers shall have received, at every date specified in Section 4(t) of this Agreement, a certificate of the Secretary of ETP LLC, dated as of such date, and in form and substance satisfactory to the Managers.
(i) All filings with the Commission required by Rule 424 and Rule 433 under the Act to have been filed by any Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 and (without reliance on Rule 433424(b)(8)).
(ij) The Shares Units shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement Date.
(jk) The Manager There shall not have received from been any decrease in the Company all due diligence materials and information reasonably requested by rating of any of the Manager Partnership’s or its counsel necessary for the Manager to satisfy its due diligence obligations.
Subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (kas such term is defined under Section 3(a)(62) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland lawExchange Act).
(l) As The Partnership shall have furnished to the Managers, at every Representation Date, such other documents and certificates as the Managers may reasonably request. If any of the first Settlement Dateconditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, the Manager shall have received a copy or if any of the Operating Partnership opinions and certificates mentioned above or elsewhere in this Agreement Amendment duly authorizedshall not be reasonably satisfactory in form and substance to any Managers and counsel for such Manager, executed this Agreement, as it relates to such Manager, and delivered all obligations of such Manager hereunder may be canceled at, or at any time prior to, any Settlement Date by the Companysuch Manager.
Appears in 1 contract
Samples: Equity Distribution Agreement (Energy Transfer Partners, L.P.)
Conditions of Manager’s Obligations. The obligations of the Manager hereunder are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any Representation Date, any Time applicable date referred to in Section 4(n) of Sale this Agreement and as of any each Settlement Date, (ii) the performance by the Company and the Operating Partnership of their respective its obligations hereunder and (iii) to the following additional conditions precedent.
(i) No stop order with respect to suspending the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has under the Act shall have been issued and no proceedings for such purpose shall be pending before or threatened by the Commission, Commission and no suspension any requests for additional information on the part of the qualification Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Shares for offer or sale in any jurisdiction, or to the knowledge of the Company or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurredManager; (ii) each part of the Registration Statement and all amendments thereto any amendment thereto, at the time it became effective, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iii) none of the Basic Prospectus or the Prospectus, and no amendment as amended or supplement theretosupplemented, shall include an not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are were made, not misleading; .
(i) The Partnership and its subsidiaries shall not have sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree that could reasonably be expected to have a Material Adverse Effect, and (ii) since the respective dates as of which information is given in the Prospectus, there shall not have been any change, or any development involving a prospective change, in the partnership interests, capital stock or long-term debt of the Partnership or any of its subsidiaries that would constitute a material adverse change to the Partnership and its subsidiaries taken as a whole, or any material adverse change in the general affairs, management, financial position or results of operations of the Partnership and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, in the case of either clause (i) or this clause (ii), other than as set forth in or contemplated by the Prospectus, if in the judgment of the Manager any such change makes it impracticable or inadvisable to consummate the sale and delivery of the Units as contemplated in the Prospectus.
(c) The Partnership shall have furnished to the Manager, at every date specified in Section 4(n) of this Agreement, the written opinion of Company Counsel, or other counsel satisfactory to the Manager, dated as of such date, as specified in Section 4(o).
(d) At the dates specified in Section 4(r) of this Agreement, the Manager shall have received from the Partnership’s accountants the letters, dated as of such date, as specified in Section 4(r).
(e) The Partnership shall have delivered to the Manager, at every date specified in Section 4(n) of this Agreement (each, a “Certificate Date”), a certificate of an executive officer of the Company, which shall certify, to the best of his or her knowledge after reasonable investigation, on behalf of the Partnership that (i) the representations and warranties of the Partnership as set forth in this Agreement are true and correct as of the Certificate Date, (ii) the Partnership has performed such of its obligations under this Agreement as are to be performed at or before each such Certificate Date, (iii) no stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus under the Act has been issued and no proceedings for such purpose are pending before or threatened by the Commission, (iv) no each part of the Registration Statement and any amendment thereto, at the time it became effective, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (v) the Prospectus, together with as amended or supplemented, does not contain any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are were made, not misleading; (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(i) None of the Company, the Operating Partnership or any of their respective and its subsidiaries shall have sustained since the date of the latest audited financial statements included or incorporated by reference in the Prospectus Prospectus, any loss or interference with its business or the Properties from fire, explosion, flood or other calamity calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decreedecree that could reasonably be expected to have a Material Adverse Effect, otherwise other than as set forth in or contemplated in by the Prospectus, and (iivii) since the respective dates as of which information is given in the Prospectus, there shall has not have been any change in the capital stock of the Company or OP Units or Series A Preferred Units of the Operating Partnership or long-term debt of the Company, the Operating Partnership or any of their respective subsidiaries or any change, or any development involving a prospective change, in the partnership interests, capital stock or affecting long-term debt of the Partnership or any of its subsidiaries that would constitute a material adverse change to the Partnership and its subsidiaries taken as a whole, or any material adverse change in the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, position or results of operations of the Company, the Operating Partnership or their respective and its subsidiaries, considered taken as one enterprisea whole, otherwise whether or not arising in the ordinary course of business, other than as set forth in or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in by the Prospectus.
(cf) On The Manager shall have received, at every date specified in Section 4(p4(n) hereofof this Agreement, the Manager shall have received an written opinion of Company CounselXxxxxxx Xxxxx LLP, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 hereto, dated such date.
(d) On every date specified in Section 4(q) hereof, the Manager shall have received an opinion of Maryland Counsel, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On every date specified in Section 4(s) hereof, the Manager shall have received from KPMG LLP, or other independent accountants reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, a Comfort Letter, dated as of such date, as specified in Section 4(q).
(fg) On The Manager shall have received, at every date specified in Section 4(o4(n) hereofof this Agreement, the Manager shall have received a certificate executed on behalf of the Company, for itself and in its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer to the effect that (i) the representations and warranties Secretary of the Company and the Operating Partnership as set forth in Section 2 are true and correct General Partner on behalf of the Partnership, dated as of the Representation Datesuch date, (ii) the Company and the Operating Partnership have performed their respective obligations under this Agreement that they are required to perform on or prior to such Representation Date, (iii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there has not occurred any Material Adverse Effect.
(g) On every date as specified in Section 4(r) hereof, the Manager shall have received an opinion of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Manager, or other counsel reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, dated such date4(p).
(h) All filings with respect to the Commission Units required by Rule 424 and Rule 433 under of the Act Rules to have been filed with the Commission by any the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 and Rule 433424.
(i) The Shares Units shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement Date.
(j) The Manager shall have received from the Company all due diligence materials and information reasonably requested by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligations.
(k) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland law.
(l) As of the first Settlement Date, the Manager shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
Appears in 1 contract
Samples: Equity Distribution Agreement (Kinder Morgan Energy Partners L P)
Conditions of Manager’s Obligations. The obligations of the Manager hereunder are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any applicable Representation Date, any Time of Sale Date and as of any each Settlement Date, (ii) the performance by the Company and the Operating Partnership of their respective its obligations hereunder and (iii) to the following additional conditions precedent.
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares for offer offering or sale in any jurisdiction, or to the knowledge of the Company or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Basic Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None of the Company, the Operating Partnership or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since Subsequent to the respective dates as of which information is given in the Registration Statement, the Basic Prospectus, there shall not have been any change the Prospectus and the Permitted Free Writing Prospectuses, if any, no material and unfavorable change, financial or otherwise (other than as referred to in the capital stock Registration Statement and Prospectus), in the business, condition or prospects of the Company or OP Units or Series A Preferred Units and its Subsidiaries taken as a whole, in the judgment of the Operating Partnership Manager, shall occur or long-term debt become known and no transaction which is material and unfavorable to the Company (other than as referred to in the Registration Statement and Prospectus) in the judgment of the CompanyManager, shall have been entered into by the Operating Partnership Company or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the Prospectusits Subsidiaries.
(c) On The Company shall furnish to the Manager, at every date specified in Section 4(p4(r) hereofof this Agreement, an opinion of Company Counsel, addressed to the Manager, and dated as of such date, and in form satisfactory to the Manager, in the form set forth in Exhibit A hereto.
(d) The Company shall furnish to the Manager, at every date specified in Section 4(s) of this Agreement, an opinion of Vxxxxxx LLP, addressed to the Manager, and dated as of such date, and in form satisfactory to the Manager, in the form set forth in Exhibit B hereto.
(e) The Company shall furnish to the Manager, at every date specified in Section 4(u) of this Agreement, an opinion of Cxxxxxx Xxxxxx, LLP, addressed to the Manager, and dated as of such date, and in form satisfactory to the Manager, in the form set forth in Exhibit C hereto.
(f) At the dates specified in Section 4(w) of this Agreement, the Manager shall have received an opinion from the Accountants letters dated the date of Company Counsel, or other counsel reasonably delivery thereof and addressed to the Manager in form and substance satisfactory to the Manager, in form reasonably satisfactory .
(g) The Company shall deliver to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 hereto, dated such date.
(d) On at every date specified in Section 4(q) hereof, the Manager shall have received an opinion of Maryland Counsel, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On every date specified in Section 4(s) hereof, the Manager shall have received from KPMG LLP, or other independent accountants reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Managerthis Agreement, a Comfort Letter, dated as certificate of such date.
(f) On every date specified in Section 4(o) hereof, the Manager shall have received a certificate executed on behalf two of the Company, for itself and in its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer executive officers to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 this Agreement are true and correct in all material respects (except for those representations and warranties qualified as to materiality, which shall be true and correct in all respects and except for those representations and warranties which refer to facts existing at a specific date, which shall be true and correct as of such date) as of the Representation Date, (ii) the Company and the Operating Partnership have has performed their respective such of its obligations under this Agreement that they as are required to perform on be performed at or prior to before such Representation Date, and (iii) no stop order suspending the effectiveness conditions set forth in paragraphs (a) and (b) of Section 6 have been met. The certificate shall also state that the Shares have been duly and validly authorized by the Company, that all corporate action required to be taken for the issuance and sale of the Registration Statement Shares has been validly and sufficiently taken, and that the Company’s Board of Directors or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there other body with authority has not occurred any Material Adverse Effectrevoked, rescinded or otherwise modified or withdrawn such authorization or corporate action.
(gh) On The Manager shall have received, at every date specified in Section 4(r4(v) hereofof this Agreement, the Manager shall have received an favorable opinion of Xxxxxx, Xxxxx MxXxxxxxx Will & Bockius Exxxx LLP, counsel to the Manager, or other counsel reasonably dated as of such date, and in form and substance satisfactory to the Manager.
(i) The Manager shall have received, at every date specified in Section 4(t) of this Agreement, a certificate of the Secretary of the Company, dated as of such date, and in form and substance reasonably satisfactory to the Manager, dated such date.
(hj) All filings with the Commission required by Rule 424 and or Rule 433 under the Act to have been filed by any Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)) and Rule 433, respectively.
(ik) The Shares shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement Date.
(j) The Manager shall have received from the Company all due diligence materials and information reasonably requested by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligations.
(k) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland law.
(l) As of the first Settlement Date, the Manager shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
Appears in 1 contract
Conditions of Manager’s Obligations. The obligations of the each Manager hereunder are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any applicable Representation Date, any as of each Time of Sale and as of any each Settlement Date, (ii) the performance by the Company and the Operating Partnership of their respective its obligations hereunder and (iii) to the following additional conditions precedent.:
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Securities Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares Units for offer offering or sale in any jurisdiction, or to the knowledge of the Company Partnership or the Manager Managers of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; misleading and (iii) none of the Basic Base Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None of the Company, the Operating Partnership or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since Subsequent to the respective dates as of which information is given in the Registration Statement, the Base Prospectus and the Prospectus, there no material and unfavorable change, financial or otherwise (other than as referred to in the Registration Statement and Prospectus), in the business, condition or prospects of the Partnership and its Subsidiaries taken as a whole, in the judgment of the Managers, shall not have occurred or become known and no transaction which is material and unfavorable to the Partnership (other than as referred to in the Registration Statement and Prospectus) in the judgment of the Managers, shall have been any change in entered into by the capital stock of the Company or OP Units or Series A Preferred Units of the Operating Partnership or long-term debt of the Company, the Operating Partnership or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the Prospectusits Subsidiaries.
(c) On every date specified in Section 4(p) hereof, the Manager The Partnership shall have received an opinion of Company Counsel, or other counsel reasonably satisfactory furnished to the ManagerManagers, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 hereto, dated such date.
(d) On at every date specified in Section 4(q) hereofof this Agreement, an opinion of Partnership Counsel, addressed to the Managers, and dated as of such date, and in form satisfactory to the Managers, in the form set forth in Exhibit A hereto; provided, however, that in lieu of such opinions for Representation Dates subsequent to the commencement of the offering of the Units under this Agreement, counsel may furnish the Managers with a Reliance Letter to the effect that the Managers may rely on a prior opinion delivered under Section 4(r) to the same extent as if it were dated the date of such letter (except that statements in such prior opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented at such Representation Date).
(i) At the dates specified in Section 4(v) of this Agreement, the Manager Managers shall have received an opinion from the Accountants, one or more letters dated the date of Maryland Counseldelivery thereof and addressed to the Managers in form and substance satisfactory to the Manager and (ii) at the date specified in Section 4(w) of this Agreement, or other counsel reasonably the Managers shall have received from EY, a letter dated the date of delivery thereof and addressed to the Managers in form and substance satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On The Partnership shall have delivered to the Managers, at every date Representation Date specified in Section 4(s4(q) hereof, the Manager shall have received from KPMG LLP, or other independent accountants reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Managerof this Agreement, a Comfort Letter, dated as certificate of such date.
(f) On every date specified in Section 4(o) hereof, the Manager shall have received a certificate executed on behalf two of the Company, for itself and in its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer executive officers to the effect that that:
(i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 this Agreement are true and correct as of the Representation DateDate with the exception of the representations in Section 2(h) and (j), of which the representation in Section 2(h) and (j) shall be updated in certificates delivered pursuant to this Section 6(e)(i) at subsequent Representation Dates as follows:
(1) As of the date hereof, the Partnership has no partnership interests issued and outstanding other than (i) the 2.0% general partner interest in the Partnership held by the General Partner, (ii) the Company 98.0% limited partner interest in the Partnership represented by Common Units, of which Common Units are owned by ETP, representing a % limited partner interest in the Partnership, and are owned by public unitholders representing an aggregate % limited partner interest in the Operating Partnership, and (iii) the Incentive Distribution Rights (as defined in the Partnership Agreement) held by the General Partner.
(2) As of the date hereof, the Partnership has no direct or indirect subsidiaries (as defined under the Securities Act) other than the subsidiaries listed in Schedule A hereto (collectively, sometimes referred to herein as the “Subsidiaries”); other than the Subsidiaries, the Partnership does not own, directly or indirectly, any shares of stock or any other equity interests or long-term debt securities of any corporation, firm, partnership, joint venture, association or other entity (other than as set forth on Schedule A hereto); complete and correct copies of the formation and governing documents of each of the Partnership Entities and all amendments thereto have been delivered to the Managers; and each of the Partnership Entities is in compliance with the laws, orders, rules, regulations and directives issued or administered by such jurisdictions, except where the failure to be in compliance would not, individually or in the aggregate, have a Material Adverse Effect. Attached hereto as Schedule B is a listing of the Material Subsidiaries.
(ii) the Partnership has performed their respective such of its obligations under this Agreement that they as are required to perform on be performed at or prior to before such Representation Date, and
(iii) no stop order suspending the effectiveness conditions set forth in paragraphs (a) and (b) of Section 6 have been met. The certificate shall also state that the Units have been duly and validly authorized by the Partnership, that all partnership action required to be taken for the issuance and sale of the Registration Statement Units has been validly and sufficiently taken, and that the General Partner’s Board of Directors or any post-effective amendment other body with authority has not revoked, rescinded or otherwise modified or withdrawn such authorization or partnership action.
(f) The Partnership shall have furnished to the Managers, at every date specified in Section 4(s) of this Agreement, an opinion of Pennsylvania Counsel, addressed to the Managers, and dated as of such date, and in form satisfactory to the Managers, in the form set forth in Exhibit B hereto; provided, however, that in lieu of such opinions for Representation Dates subsequent to the commencement of the offering of the Units under this Agreement, counsel may furnish the Managers with a Reliance Letter to the effect that the Managers may rely on a prior opinion delivered under Section 4(s) to the same extent as if it were dated the date of such letter (except that statements in such prior opinion shall be deemed to relate to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including Prospectus as amended or supplemented at such Representation Date, there has not occurred any Material Adverse Effect).
(g) On The Managers shall have received, at every date specified in Section 4(r4(t) hereofof this Agreement, a certificate of the Secretary of the General Partner, dated as of such date, and in form and substance satisfactory to the Managers.
(h) The Managers shall have received, at every date specified in Section 4(u) of this Agreement, the Manager shall have received an favorable opinion of Xxxxxx, Xxxxxxx Xxxxx & Bockius LLP, counsel to the ManagerManagers, or other counsel reasonably satisfactory to the Managerdated as of such date, and in form and substance reasonably satisfactory to the ManagerManagers; provided, however, that in lieu of such opinions for Representation Dates subsequent to the commencement of the offering of the Units under this Agreement, counsel may furnish the Managers with a Reliance Letter to the effect that the Managers may rely on a prior opinion delivered under Section 4(u) to the same extent as if it were dated the date of such dateletter (except that statements in such prior opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented at such Representation Date).
(hi) All filings with the Commission required by Rule 424 and or Rule 433 under the Securities Act to have been filed by any Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)) and Rule 433, respectively.
(ij) The Shares Units shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement Date.
(jk) The Manager There shall not have received from been any decrease in the Company all due diligence materials and information reasonably requested by rating of any of the Manager Partnership’s or its counsel necessary for the Manager to satisfy its due diligence obligations.
Subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (kas such term is defined under Section 3(a)(62) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland lawExchange Act).
(l) As of the first Settlement Date, the Manager The Partnership shall have received a copy furnished to the Managers, at every date specified in Section 4(q) of this Agreement, such other documents and certificates as the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the CompanyManagers may reasonably request.
Appears in 1 contract
Samples: Equity Distribution Agreement (Sunoco Logistics Partners L.P.)
Conditions of Manager’s Obligations. The obligations of the Manager hereunder are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership Capital Parties on the date hereof, any applicable Representation Date, any Time of Sale Date and as of any each Settlement Date, (ii) the performance by the Company and the Operating Partnership Capital Parties of their respective obligations hereunder and (iii) to the following additional conditions precedent.
(ia) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares Units for offer offering or sale in any jurisdiction, or to the knowledge of the Company Partnership or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Basic Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None of the Company, the Operating Partnership or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since Subsequent to the respective dates as of which information is given in the Registration Statement, the Basic Prospectus, there the Prospectus and the Permitted Free Writing Prospectuses, if any, no material and unfavorable change, financial or otherwise (other than as referred to or incorporated by reference in the Registration Statement and Prospectus), in the business, condition or prospects of the Partnership and its Subsidiaries taken as a whole, in the judgment of the Manager, shall not occur or become known and no transaction which is material and unfavorable to the Partnership (other than as referred to or incorporated by reference in the Registration Statement and Prospectus) in the judgment of the Manager, shall have been any change in entered into by the capital stock of the Company or OP Units or Series A Preferred Units of the Operating Partnership or long-term debt of the Company, the Operating Partnership or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the Prospectusits Subsidiaries.
(c) On every date specified in Section 4(p) hereof, the Manager The Partnership shall have received an opinion of Company Counsel, or other counsel reasonably satisfactory furnish to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 hereto, dated such date.
(d) On at every date specified in Section 4(q) hereofof this Agreement, the Manager shall have received an opinion of Maryland U.S. Counsel, or other counsel reasonably addressed to the Manager, and dated as of such date, and in form satisfactory to the Manager, in the form reasonably set forth in Exhibit A hereto.
(d) The Partnership shall furnish to the Manager, at every date specified in Sections 4(r) and 4(t) of this Agreement, an opinion of Xxxxxxxx Islands/Liberian Counsel and English Counsel, addressed to the Manager, and dated as of such date, and in forms satisfactory to the Manager, with respect to in the matters forms set forth in Exhibit B and Exhibit D hereto, dated such date.
(e) On The Partnership shall furnish to the Manager, at every date specified in Section 4(s) hereofof this Agreement, an opinion of Greek Counsel, addressed to the Manager, and dated as of such date, and in form satisfactory to the Manager, in the form set forth in Exhibit C hereto.
(f) The Partnership shall furnish to the Manager, at every date specified in Section 4(u) of this Agreement, an opinion of Panama Counsel, addressed to the Manager, and dated as of such date, and in form satisfactory to the Manager, in the form set forth in Exhibit E hereto.
(g) The Partnership shall furnish to the Manager, at every date specified in Section 4(v) of this Agreement, an opinion of Malta Counsel, addressed to the Manager, and dated as of such date, and in form satisfactory to the Manager, in the form set forth in Exhibit F hereto.
(h) At the dates specified in Section 4(y) of this Agreement, the Manager shall have received from KPMG LLPDeloitte, or other independent accountants reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, a Comfort Letter, comfort letter dated as the date of such datedelivery thereof and addressed to the Manager in form and substance satisfactory to the Manager.
(fi) On The Partnership shall deliver to the Manager, at every date Representation Date specified in Section 4(o4(p) hereofof this Agreement, the Manager shall have received a certificate executed on behalf of the Company, for itself and in its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President Officer and any Executive Vice President and the Chief Financial Officer of its General Partner to the effect that (i) the representations and warranties of the Company and the Operating Partnership Capital Parties as set forth in Section 2 this Agreement are true and correct as of the Representation Date, (ii) each of the Company and the Operating Partnership have Capital Parties has performed their respective such of its obligations under this Agreement that they as are required to perform on be performed at or prior to before such Representation Date, and (iii) no stop order suspending the effectiveness conditions set forth in paragraphs (a) and (b) of this Section 6 have been met. The certificate shall also state that the Units have been duly and validly authorized by the Partnership, that all corporate action required to be taken for the issuance and sale of the Registration Statement Units has been validly and sufficiently taken, and that the Partnership’s Board of Directors or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there other body with authority has not occurred any Material Adverse Effectrevoked, rescinded or otherwise modified or withdrawn such authorization or corporate action.
(gj) On The Manager shall have received, at every date specified in Section 4(r4(x) hereofof this Agreement, the Manager shall have received an favorable opinion and disclosure letter of XxxxxxCravath, Swaine & Xxxxx & Bockius LLP, counsel to the Manager, or other counsel reasonably dated as of such date, and in form and substance satisfactory to the Manager.
(k) The Manager shall have received, at every date specified in Section 4(w) of this Agreement, a certificate of the Secretary or Assistant Secretary of each of the Capital Parties, dated as of such date, and in form and substance reasonably satisfactory to the Manager, dated such date.
(hl) All filings with the Commission required by Rule 424 and or Rule 433 under the Act to have been filed by any Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)) and Rule 433, respectively.
(im) The Shares Units shall have been approved for listing on the NYSENasdaq, subject only to notice of issuance at or prior to the first Settlement Date.
(j) The Manager shall have received from the Company all due diligence materials and information reasonably requested by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligations.
(k) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland law.
(l) As of the first Settlement Date, the Manager shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
Appears in 1 contract
Samples: Equity Distribution Agreement (Capital Product Partners L.P.)
Conditions of Manager’s Obligations. The respective obligations of the each Manager hereunder are subject to (i) the accuracy accuracy, at the Execution Time, on each Representation Date and as of each Time of Sale and Settlement Date, of the representations and warranties of the Company and the Operating Partnership on the date hereof, any Representation Date, any Time of Sale and as of any Settlement DateBreitBurn Parties contained herein, (ii) the performance by the Company and the Operating Partnership BreitBurn Parties of their respective obligations hereunder and (iii) to each of the following additional conditions precedent.terms and conditions:
(ia) No The Prospectus, and any supplement thereto, shall have been timely filed with the Commission in accordance with Section 3(a); no stop order with respect to suspending the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has shall have been issued and no proceeding or examination for such purpose shall have been initiated or threatened by the Commission, ; and no suspension any request of the qualification Commission for inclusion of the Shares for offer or sale additional information in any jurisdiction, or to the knowledge of the Company or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement or the Prospectus or otherwise shall have been complied with.
(b) No Manager shall have discovered and all amendments thereto shall not contain disclosed to the Partnership on or prior to such Settlement Date that the Registration Statement, as of the latest Effective Date, or the Prospectus at the Time of Sale, each Settlement Date and during the Prospectus Delivery Period, in each case including any amendment or supplement thereto, contains an untrue statement of a fact which, in the opinion of Bxxxx Bxxxx L.L.P., counsel to the Managers, is material fact or omit omits to state a fact which, in the opinion of such counsel, is material fact and is required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Basic Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact is necessary in order to make the statements thereintherein not misleading (in the case of the Prospectus, in the light of the circumstances under which such statements were made).
(c) All corporate, partnership and limited liability company proceedings and other legal matters incident to the authorization, form and validity of this Agreement, the Units, the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement and the transactions contemplated hereby shall be reasonably satisfactory in all material respects to Bxxxx Bxxxx L.L.P., counsel to the Managers, and the Partnership shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Vxxxxx & Exxxxx L.L.P. shall have furnished to the Managers its written opinion, as counsel to the Partnership, addressed to the Managers and dated each Representation Date, in form and substance reasonably satisfactory to the Managers, substantially in the form attached hereto as Exhibit C.
(e) Mxxx Xxxxxx Xxxxxxx & Jxxxx PLC, shall have furnished to the Managers its written opinion, as local Michigan counsel to the BreitBurn Entities organized under the laws of the State of Michigan, addressed to the Managers and dated each Representation Date, in form and substance reasonably satisfactory to the Managers, substantially in the form attached hereto as Exhibit D.
(f) Gxxxxxx X. Xxxxx, the General Partner’s Executive Vice President and General Counsel, shall have furnished to the Managers his written opinion, addressed to the Managers and dated each Representation Date, in form and substance reasonably satisfactory to the Managers, substantially in the form attached hereto as Exhibit E.
(g) The Managers shall have received from Bxxxx Bxxxx L.L.P., counsel for the Managers, such opinion or opinions, dated each Representation Date, with respect to the issuance and sale of the Units, the Registration Statement, the Prospectus and other related matters as the Managers may reasonably require, and the Partnership shall have furnished to such counsel such documents and information as such counsel reasonably requests for the purpose of enabling them to pass upon such matters.
(h) On each Representation Date and to the extent requested by the Managers in connection with the offering of the Units, the Managers shall have received from each of PricewaterhouseCoopers LLP, Deloitte & Touche LLP and Jxxxxxx Mxxxxx & Co., CPA’s PC a letter, in form and substance satisfactory to the Managers, addressed to the Managers and dated such date (i) confirming that they are madeindependent public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X under the Securities Act, not misleading; and (ivii) no stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Registration Statement or the Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement as of a material fact or omit date not more than five days prior to state a material fact necessary in order the date hereof), the conclusions and findings of such firm with respect to make the statements therein, in the light of the circumstances under which they are made, not misleading; (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; financial information and (viiii) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit covering such other matters as are ordinarily covered by accountants’ “comfort letters” to state a material fact necessary underwriters in order to make the statements therein, in the light of the circumstances under which they are made, not misleadingconnection with registered public offerings.
(i) None On each Representation Date and to the extent requested by the Managers in connection with the offering of the CompanyUnits, the Operating Partnership or any Managers shall have received from each of the Reserve Engineers a letter, in form and substance satisfactory to the Managers, confirming certain matters concerning their engagement and the use of their respective subsidiaries Reserve Reports and information derived from their Reserve Reports in the Registration Statement and the Prospectus
(j) Except as described in the Registration Statement and the Prospectus, (i) none of the BreitBurn Entities shall have sustained sustained, since the date of the latest audited financial statements included or incorporated by reference in the Prospectus Registration Statement and the Prospectus, any loss or interference with its respective business or the Properties from fire, explosion, flood or other calamity calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, decree and (ii) since the respective dates as of which information is given in the Prospectussuch date, there shall not have been any change in the capital stock of the Company or OP Units or Series A Preferred Units of the Operating Partnership capitalization or long-term debt of any of the Company, the Operating Partnership BreitBurn Entities or any of their respective subsidiaries or any change, or any development involving a prospective change, change in or affecting the general affairscondition (financial or otherwise), managementresults of operations, financial position, stockholders’ equity or unitholders’ equity, as applicableproperties, management or results of operations business of the Company, the Operating Partnership or their respective subsidiaries, considered BreitBurn Entities taken as one enterprise, otherwise than as set forth or contemplated in the Prospectusa whole, the effect of which, in any such case described in clause (i) or (ii), is is, individually or in the Manager’s aggregate, in the judgment of the Managers, so material and adverse as to make it impracticable or inadvisable to proceed with the public offering and sale or the delivery of the Shares Units as contemplated hereunder on by the terms Registration Statement (exclusive of any amendment thereof) and in the manner contemplated in the ProspectusProspectus (exclusive of any amendment or supplement thereto).
(ck) On every date specified in Section 4(p) hereof, Each of the Manager BreitBurn Parties shall have received an opinion of Company Counsel, furnished or other counsel reasonably satisfactory caused to be furnished to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 heretoManagers a certificate, dated such date.
(d) On every date specified in Section 4(q) hereofeach Representation Date, signed on its behalf by the Manager shall have received an opinion of Maryland Counsel, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On every date specified in Section 4(s) hereof, the Manager shall have received from KPMG LLP, or other independent accountants reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, a Comfort Letter, dated as of such date.
(f) On every date specified in Section 4(o) hereof, the Manager shall have received a certificate executed on behalf of the Company, for itself and in its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President Officer and the Chief Financial Officer of the General Partner, or other officers satisfactory to the effect that Managers, as to such matters as the Managers may reasonably request, including, without limitation, a statement that:
(i) the representations The representations, warranties and warranties agreements of the Company and the Operating Partnership as set forth BreitBurn Parties in Section 2 1 are true and correct on and as of the Representation Datesuch date, (ii) the Company and the Operating Partnership BreitBurn Parties have complied with all their agreements contained herein and satisfied all the conditions on their part to be performed their respective obligations under this Agreement that they are required to perform on or satisfied hereunder at or prior to such Representation Date, date;
(iiiii) no No stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings for that purpose have been instituted or, to the knowledge of such officers, threatened; and the Commission has not notified the Partnership of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have examined the Registration Statement and the Prospectus, and, in their opinion as of such date, (A) the Registration Statement and the Prospectus did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement or the Prospectus that has not been so set forth.
(l) Between the date hereof and the time of any sale of Units through the Managers (i) no downgrading shall be have occurred in effect, and no proceedings for such purpose the rating accorded any debt securities or pursuant to Section 8A preferred stock issued or guaranteed by any of the Act BreitBurn Entities by any “nationally recognized statistical rating organization,” as such term is defined by the Commission for purposes of Section 3(a)(62) of the Exchange Act; and (ii) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of any debt securities or preferred stock issued or guaranteed by any of the BreitBurn Entities (other than an announcement with positive implications of a possible upgrading).
(m) Subsequent to the execution and delivery of this Agreement there shall not have occurred any of the following: (i) trading in securities generally on the New York Stock Exchange, NASDAQ, or in the over-the-counter market, or trading in any securities of the Partnership on any exchange or in the over-the-counter market, shall have been instituted or, to suspended or materially limited or the knowledge settlement of the Company and the Operating Partnership, threatened such trading generally shall have been materially disrupted or minimum prices shall have been established on any such exchange or such market by the Commission and Commission, by such exchange or by any other regulatory body or governmental authority having jurisdiction, (ii) a general moratorium on commercial banking activities shall have been declared by federal or state authorities, (iii) the United States shall have become engaged in hostilities, there shall have been an escalation in hostilities involving the United States or there shall have been a declaration of a national emergency or war by the United States or (iv) for the period from and including such a material adverse change in general economic, political or financial conditions, including, without limitation, as a result of terrorist activities after the date hereof (or the effect of this Agreement through and including such Representation Dateinternational conditions on the financial markets in the United States shall be such), there has not occurred as to make it, in the judgment of the Managers, impracticable or inadvisable to proceed with the public offering or delivery of the Units as contemplated in the Prospectus (exclusive of any Material Adverse Effectamendment or supplement thereto).
(gn) NASDAQ shall have approved the Units for listing, subject only to official notice of issuance.
(o) On every date specified in Section 4(r) hereofor prior to each Settlement Date and Time of Delivery, as applicable, the Manager BreitBurn Parties shall have received an opinion of Xxxxxx, Xxxxx & Bockius LLP, counsel furnished to the Manager, or other counsel Managers such further certificates and documents as the Managers may reasonably satisfactory request.
(p) FINRA shall not have raised any objection with respect to the Managerfairness and reasonableness of the terms and arrangements under this Agreement. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form and substance reasonably satisfactory to the Manager, dated such date.
(h) All filings with the Commission required by Rule 424 and Rule 433 under the Act to have been filed by any Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 and Rule 433.
(i) The Shares shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement Date.
(j) The Manager shall have received from the Company all due diligence materials and information reasonably requested by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligationsManagers.
(k) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland law.
(l) As of the first Settlement Date, the Manager shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
Appears in 1 contract
Samples: Equity Distribution Agreement (BreitBurn Energy Partners L.P.)
Conditions of Manager’s Obligations. The obligations of the each Manager hereunder are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any applicable Representation Date, any as of each Time of Sale and as of any each Settlement Date, (ii) the performance by the Company and the Operating Partnership of their respective its obligations hereunder and (iii) to the following additional conditions precedent.:
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares Units for offer offering or sale in any jurisdiction, or to the knowledge of the Company Partnership or the Manager Managers of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iii) none of the Basic Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None of the Company, the Operating Partnership or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since Subsequent to the respective dates as of which information is given in the Registration Statement, the Basic Prospectus and the Prospectus, there no material and unfavorable change, financial or otherwise (other than as referred to in the Registration Statement and Prospectus), in the business, condition or prospects of the Partnership and its Subsidiaries taken as a whole, in the judgment of the Managers, shall not have occurred or become known and no transaction which is material and unfavorable to the Partnership (other than as referred to in the Registration Statement and Prospectus) in the judgment of the Managers, shall have been any change in entered into by the capital stock of the Company or OP Units or Series A Preferred Units of the Operating Partnership or long-term debt of the Company, the Operating Partnership or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the Prospectusits Subsidiaries.
(c) On The Partnership shall have furnished to the Managers, at every date specified in Section 4(p4(r) hereofof this Agreement, the Manager shall have received an opinion of Company Partnership Counsel, or other counsel reasonably addressed to the Managers, and dated as of such date, and in form satisfactory to the ManagerManagers, in the form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 A hereto, dated such date.
(d) On every date specified in Section 4(q) hereof, the Manager The Partnership shall have received an opinion of Maryland Counsel, or other counsel reasonably satisfactory furnished to the ManagerManagers, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On at every date specified in Section 4(s) hereofof this Agreement, the Manager shall have received from KPMG LLPan opinion of Xxxxxx X. Xxxxx, or other independent accountants reasonably satisfactory Vice President, General Counsel and Secretary of ETP LLC, addressed to the ManagerManagers, in form and substance reasonably satisfactory to the Manager, a Comfort Letter, dated as of such date, and in form satisfactory to the Managers, in the form set forth in Exhibit B hereto.
(e) At the dates specified in Section 4(v) of this Agreement, the Managers shall have received from the Accountants, and any other independent accountants, letters dated the date of delivery thereof and addressed to the Managers in form and substance satisfactory to the Managers.
(f) On The Partnership shall have delivered to the Managers, at every date Representation Date specified in Section 4(o4(q) hereofof this Agreement, the Manager shall have received a certificate executed on behalf of the Company, for itself and in its capacity as the general partner two of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer ETP LLC’s executive officers to the effect that that:
(i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 this Agreement are true and correct as of the Representation DateDate with the exception of the representations in Section 2(h), (i), (l) and (v), of which the representation in Section 2(h), (i), (l) and (v) shall be updated in certificates delivered pursuant to this Section 6(f) at subsequent Representation Dates as follows:
(A) The General Partner is the sole general partner of the Partnership with an approximate ____ % general partner interest in the Partnership as of the date hereof.
(B) As of the date hereof, the limited partners of the Partnership own ____________ Common Units, _____________ Class E Units, ________ Class G Units and _____________ Class H Units, representing an approximate ____% limited partner interest in the Partnership, __________ Common Units of which are owned by ETE or ETE Common Holdings, LLC, _____ Class E Units of which are owned by Heritage Holdings, Inc., _______ Class G Units of which are owned by subsidiaries of Sunoco, Inc. and _____________ Class H Units of which are owned by ETE Common Holdings, LLC.
(C) As of the date hereof, the Partnership has no direct or indirect subsidiaries (as defined under the Act) other than the subsidiaries listed in Schedule A hereto (collectively, sometimes referred to herein as the “Subsidiaries”); other than the Subsidiaries, the Partnership does not own, directly or indirectly, any shares of stock or any other equity interests or long-term debt securities of any corporation, firm, partnership, joint venture, association or other entity; complete and correct copies of the formation and governing documents of each of the ETP Entities and all amendments thereto have been delivered to the Managers; and each of the ETP Entities is in compliance with the laws, orders, rules, regulations and directives issued or administered by such jurisdictions, except where the failure to be in compliance would not, individually or in the aggregate, have a Material Adverse Effect. Attached hereto as Schedule B is a listing of each of the Subsidiaries of the Partnership that is a "significant subsidiary" as defined in Rule 1-02 of Regulation S‑X as of the date hereof (collectively, the “Material Subsidiaries”).
(D) Xxxxx Xxxxxxxx LLP, who have audited the consolidated financial statements of the Partnership as of and for the years ended ________ , are independent registered public accountants as required by the Act and by the rules of the Public Company Accounting Oversight Board (the “PCAOB”); and (ii) _____, who have audited the consolidated financial statements of ____________ and its subsidiaries as of ____________, are independent registered public accountants as required by the Act and by the rules of the PCAOB.
(ii) the Company and the Operating Partnership have has performed their respective such of its obligations under this Agreement that they as are required to perform on be performed at or prior to before such Representation Date, and
(iii) no stop order suspending the effectiveness conditions set forth in paragraphs (a) and (b) of Section 6 have been met. The certificate shall also state that the Units have been duly and validly authorized by the Partnership, that all partnership action required to be taken for the issuance and sale of the Registration Statement Units has been validly and sufficiently taken, and that ETP LLC’s Board of Directors or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there other body with authority has not occurred any Material Adverse Effectrevoked, rescinded or otherwise modified or withdrawn such authorization or partnership action.
(g) On The Managers shall have received, at every date specified in Section 4(r4(u) hereofof this Agreement, the Manager shall have received an favorable opinion of Xxxxxx, Xxxxxxx Xxxxx & Bockius LLPXXX, counsel to the ManagerManagers, or other counsel reasonably satisfactory to the Managerdated as of such date, and in form and substance reasonably satisfactory to the Manager, dated such dateManagers.
(h) The Managers shall have received, at every date specified in Section 4(t) of this Agreement, a certificate of the Secretary of ETP LLC, dated as of such date, and in form and substance satisfactory to the Managers.
(i) All filings with the Commission required by Rule 424 and Rule 433 under the Act to have been filed by any Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 and (without reliance on Rule 433424(b)(8)).
(ij) The Shares Units shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement Date.
(jk) The Manager There shall not have received from been any decrease in the Company all due diligence materials and information reasonably requested by rating of any of the Manager Partnership’s or its counsel necessary for the Manager to satisfy its due diligence obligations.
Subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (kas such term is defined under Section 3(a)(62) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland lawExchange Act).
(l) As The Partnership shall have furnished to the Managers, at every Representation Date, such other documents and certificates as the Managers may reasonably request. If any of the first Settlement Dateconditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, the Manager shall have received a copy or if any of the Operating Partnership opinions and certificates mentioned above or elsewhere in this Agreement Amendment duly authorizedshall not be reasonably satisfactory in form and substance to any Managers and counsel for such Manager, executed this Agreement, as it relates to such Manager, and delivered all obligations of such Manager hereunder may be canceled at, or at any time prior to, any Settlement Date by the Companysuch Manager.
Appears in 1 contract
Samples: Equity Distribution Agreement (Energy Transfer Partners, L.P.)
Conditions of Manager’s Obligations. The obligations of the Manager hereunder and under any Terms Agreement are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any Representation Dateapplicable date referred to in Section 4(q) of this Agreement, the date of any Time of Sale executed Terms Agreement and as of any each Settlement DateDate and Time of Delivery, (ii) the performance by the Company and the Operating Partnership of their respective its obligations hereunder and (iii) to the following additional conditions precedent.
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares for offer offering or sale in any jurisdiction, or to the knowledge of the Company or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Basic Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus or Basic Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None No material and unfavorable change, financial or otherwise (other than as referred to in the Registration Statement and Prospectus), in the business, condition or prospects of the Company, Company and each of its Subsidiaries taken as a whole shall occur or become known and no transaction which is material and unfavorable to the Operating Partnership Company (other than as referred to in the Registration Statement and Prospectus) shall have been entered into by the Company or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since the respective dates as of which information is given in the Prospectus, there shall not have been any change in the capital stock of the Company or OP Units or Series A Preferred Units of the Operating Partnership or long-term debt of the Company, the Operating Partnership or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the ProspectusSubsidiaries.
(c) On every date specified in Section 4(p) hereof, the Manager The Company shall have received an opinion of Company Counsel, or other counsel reasonably satisfactory furnish to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 hereto, dated such date.
(d) On at every date specified in Section 4(q) hereofof this Agreement, the Manager shall have received an opinion opinions of Maryland Company Counsel, or other counsel reasonably addressed to the Manager, and dated as of such date, and in form satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters forms set forth in Exhibit B A, Exhibit B, Exhibit C and Exhibit D hereto, dated such date.
(ed) On every date At the dates specified in Section 4(s) hereofof this Agreement, the Manager shall have received from KPMG LLP, or other independent accountants reasonably the Accountants letters dated the date of delivery thereof and addressed to the Manager in form and substance satisfactory to the Manager, in form and substance reasonably satisfactory .
(e) The Company will deliver to the ManagerManager a certificate, a Comfort Letter, (i) dated as of such date.
and delivered on each Filing Date and (fii) On every date specified in Section 4(o) hereofdated as of and delivered on the Time of Delivery pursuant to any Terms Agreement, the Manager shall have received (each, a certificate executed on behalf “Certificate Date”), of the Company, for itself and in two of its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer executive officers to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 this Agreement are true and correct as of the Representation Certificate Date, (ii) the Company and the Operating Partnership have performed their respective shall perform such of its obligations under this Agreement that they as are required to perform on be performed at or prior to before each such Representation Certificate Date, and (iii) no stop order suspending the effectiveness conditions set forth in paragraphs (a) and (b) of the Registration Statement or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall 5 have been instituted ormet. In addition, on each Certificate Date, the certificate shall also state that the Shares to the knowledge of be sold on that date have been duly and validly authorized by the Company and the Operating Partnership, threatened by the Commission and (iv) that all corporate action required to be taken for the period from authorization, issuance and including sale of the Shares on that date of this Agreement through has been validly and including such Representation Date, there has not occurred any Material Adverse Effectsufficiently taken.
(gf) On The Manager shall have received, at every date specified in Section 4(r4(s) hereofof this Agreement, the Manager shall have received an favorable opinion of Xxxxxx, Xxxxx Shearman & Bockius Sterling LLP, counsel to the Manager, or other counsel reasonably dated as of such date, and in form and substance satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, dated such date.
(hg) All filings with the Commission required by Rule 424 and Rule 433 under the Act to have been filed by any the Settlement Date or the Time of Delivery, as the case may be, shall have been made within the applicable time period prescribed for such filing by Rule 424 and Rule 433424.
(ih) The Shares shall have been approved for listing on the NYSENasdaq, subject only to notice of issuance at or prior to the first Settlement DateDate or the Time of Delivery, as the case may be.
(j) The Manager shall have received from the Company all due diligence materials and information reasonably requested by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligations.
(k) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland law.
(l) As of the first Settlement Date, the Manager shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
Appears in 1 contract
Samples: Equity Distribution Agreement (Medis Technologies LTD)
Conditions of Manager’s Obligations. The obligations of the Manager hereunder are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any applicable Representation Date, any Time of Sale Date and as of any each Settlement Date, (ii) the performance by the Company and the Operating Partnership of their respective its obligations hereunder and (iii) to the following additional conditions precedent.
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares Units for offer offering or sale in any jurisdiction, or to the knowledge of the Company Partnership or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Basic Base Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the any Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (viv) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None of the Company, the Operating Partnership or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since Subsequent to the respective dates as of which information is given in the ProspectusRegistration Statement, Prospectus and any Permitted Free Writing Prospectuses, there shall not have been any change in the capital stock of the Company or OP Units or Series A Preferred Units of the Operating Partnership or long-term debt of the Company, the Operating Partnership or any of their respective subsidiaries or occurred any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equitybusiness, as applicableprospects, or results of operations of the Company, Companies and the Operating Partnership or their respective subsidiariesSubsidiaries not contemplated by the Registration Statement and Prospectus, considered as one enterprise, otherwise than as set forth or contemplated that in the Prospectus, the effect judgment of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with , would materially, adversely affect the offering and sale of market for the Shares contemplated hereunder on the terms and in the manner contemplated in the ProspectusUnits.
(c) On The Partnership shall furnish to the Manager, at every date specified in Section 4(p4(r) hereofof this Agreement, the Manager shall have received an opinion of Company CounselE. Xxxxx Xxxxxxx, or other counsel reasonably addressed to the Manager, and dated as of such date, and in form satisfactory to the Manager, in the form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 A hereto, dated such date.
(d) On every date specified in Section 4(q) hereof, the Manager The Partnership shall have received an opinion of Maryland Counsel, or other counsel reasonably satisfactory furnish to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On at every date specified in Section 4(s) hereofof this Agreement, an opinion of Fulbright & Xxxxxxxx L.L.P., counsel for the Partnership, or other counsel satisfactory to the Manager, addressed to the Manager, and dated as of such date, and in form satisfactory to the Manager, in the form set forth in Exhibit B hereto.
(e) The Partnership shall furnish to the Manager, at every date specified in Section 4(t) of this Agreement, an opinion of FERC Counsel, addressed to the Manager, and dated as of such date, and in form satisfactory to the Manager, in the form set forth in Exhibit C hereto.
(f) At the dates specified in Section 4(x) of this Agreement, the Manager shall have received from KPMG LLP, or other independent accountants reasonably the Accountants letters dated the date of delivery thereof and addressed to the Manager in form and substance satisfactory to the Manager, in form and substance reasonably satisfactory .
(g) The Partnership shall deliver to the Manager, a Comfort Letter, dated as of such date.
(f) On at every date Representation Date specified in Section 4(o4(q) hereofof this Agreement, the Manager shall have received a certificate executed on behalf of the Company, for itself and in its capacity as the general partner an executive officer of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer Enbridge Management to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 this Agreement are true and correct as of the Representation Date, (ii) the Company and the Operating Partnership have has performed their respective such of its obligations under this Agreement that they as are required to perform on be performed at or prior to before such Representation Date, and (iii) no stop order suspending the effectiveness conditions set forth in paragraphs (a) and (b) of Section 6 have been met. The certificate shall also state that the Units have been duly and validly authorized by the Partnership, that all corporate action required to be taken for the issuance and sale of the Registration Statement Units has been validly and sufficiently taken, and that the Board of Directors of Enbridge Management or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there other body with authority has not occurred any Material Adverse Effectrevoked, rescinded or otherwise modified or withdrawn such authorization or corporate action.
(gh) On The Manager shall have received, at every date specified in Section 4(r4(w) hereofof this Agreement, the Manager shall have received an favorable opinion of Xxxxxx, Xxxxx & Bockius LLPXxxxx L.L.P., counsel to the Manager, or other counsel reasonably dated as of such date, and in form and substance satisfactory to the Manager.
(i) The Manager shall have received, at every date specified in Section 4(v) of this Agreement, a certificate of the Secretary of Enbridge Management, dated as of such date, and in form and substance reasonably satisfactory to the Manager, dated such date.
(hj) All filings with the Commission required by Rule 424 and or Rule 433 under the Act to have been filed by any Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)) and Rule 433, respectively.
(ik) The Shares Units shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement Date.
(j) The Manager shall have received from the Company all due diligence materials and information reasonably requested by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligations.
(k) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland law.
(l) As of the first Settlement Date, the Manager shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
Appears in 1 contract
Samples: Equity Distribution Agreement (Enbridge Energy Partners Lp)
Conditions of Manager’s Obligations. The obligations of the Manager Managers hereunder are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, the time of any Representation Dateorder submitted by the Company pursuant to Section 3(a)(i) hereof, any Time of Sale Sale, any applicable Representation Date and as of any each Settlement Date, (ii) the performance by the Company and the Operating Partnership of their respective its obligations hereunder and (iii) to the following additional conditions precedent.:
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares for offer offering or sale in any jurisdiction, or to the knowledge of the Company or the Manager Managers of the initiation or threatening in writing of any proceedings for any of such purposespurposes or pursuant to Section 8A of the Act, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Basic Prospectus or the Prospectus, as then amended or supplemented, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, as then amended or supplemented, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None of the Company, the Operating Partnership or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since Subsequent to the respective dates as of which information is given in the Registration Statement, the Basic Prospectus, there shall not have been any change the Prospectus and the Permitted Free Writing Prospectuses, if any, as then amended or supplemented, no material and unfavorable change, financial or otherwise (other than as referred to in the capital stock Registration Statement and Prospectus), in the business, condition or prospects of the Company or OP Units or Series A Preferred Units and its Subsidiaries taken as a whole, in the judgment of the Operating Partnership Managers, shall occur or long-term debt become known and no transaction which is material and unfavorable to the Company (other than as referred to in the Registration Statement and Prospectus) in the judgment of the CompanyManagers, shall have been entered into by the Operating Partnership Company or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the Prospectusits Subsidiaries.
(c) On The Company shall furnish to the Managers, at every date specified in Section 4(p4(r) hereofof this Agreement, the Manager shall have received an opinion of Company Counsel, or other counsel reasonably addressed to the Managers, and dated as of such date, and in form satisfactory to the ManagerManagers, in the form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 A hereto, dated such date.
(d) On every date specified in Section 4(q) hereof, the Manager The Company shall have received an opinion of Maryland Counsel, or other counsel reasonably satisfactory furnish to the ManagerManagers, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On at every date specified in Section 4(s) hereofof this Agreement, the Manager shall have received from KPMG LLPan opinion of Special Counsel, or other independent accountants reasonably satisfactory addressed to the ManagerManagers, in form and substance reasonably satisfactory to the Manager, a Comfort Letter, dated as of such date, and in form satisfactory to the Managers, in the form set forth in Exhibit B hereto.
(e) At the dates specified in Section 4(u) of this Agreement, the Managers shall have received from the Accountants letters dated the date of delivery thereof and addressed to the Managers in form and substance satisfactory to the Managers.
(f) On The Company shall deliver to the Managers, at every date Representation Date specified in Section 4(o4(q) hereofof this Agreement, the Manager shall have received a certificate executed on behalf of the Company, for itself and in its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer an executive officer to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 this Agreement are true and correct as of the Representation Date, (ii) the Company and the Operating Partnership have has performed their respective such of its obligations under this Agreement that they as are required to perform on be performed at or prior to before such Representation Date, and (iii) no stop order suspending the effectiveness conditions set forth in paragraphs (a) and (b) of Section 6 have been met. The certificate shall also state that the Shares have been duly and validly authorized by the Company, that all corporate action required to be taken for the issuance and sale of the Registration Statement Shares has been validly and sufficiently taken, and that the Company’s Board of Directors or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there other body with authority has not occurred any Material Adverse Effectrevoked, rescinded or otherwise modified or withdrawn such authorization or corporate action.
(g) On The Managers shall have received, at every date specified in Section 4(r4(t) hereofof this Agreement, the Manager shall have received an favorable opinion of Xxxxxx, Xxxxx Hunton & Bockius Xxxxxxxx LLP, counsel to the ManagerManagers, or other counsel reasonably satisfactory to the Managerdated as of such date, and in form and substance reasonably satisfactory to the Manager, dated such dateManagers.
(h) The Managers shall have received a certificate of the Secretary or an Assistant Secretary of the Company, dated the date hereof, and in form and substance satisfactory to the Managers.
(i) All filings with the Commission required by Rule 424 and or Rule 433 under the Act to have been filed by any Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)) and Rule 433, respectively.
(ij) The Shares shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement Date.
(j) The Manager shall have received from the Company all due diligence materials and information reasonably requested by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligations.
(k) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland law.
(l) As of the first Settlement Date, the Manager shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
Appears in 1 contract
Conditions of Manager’s Obligations. The obligations of the Manager hereunder are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any applicable Representation Date, any as of each Time of Sale and as of any each Settlement Date, (ii) the performance by the Company and the Operating Partnership of their respective its obligations hereunder and (iii) to the following additional conditions precedent.:
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares Units for offer offering or sale in any jurisdiction, or to the knowledge of the Company Partnership or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iii) none of the Basic Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None of the Company, the Operating Partnership or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since Subsequent to the respective dates as of which information is given in the Registration Statement, the Basic Prospectus and the Prospectus, there no material and unfavorable change, financial or otherwise (other than as referred to in the Registration Statement and Prospectus), in the business, condition or prospects of the Partnership and its Subsidiaries taken as a whole, in the judgment of the Manager, shall not have occurred or become known and no transaction which is material and unfavorable to the Partnership (other than as referred to in the Registration Statement and Prospectus) in the judgment of the Manager, shall have been any change in entered into by the capital stock of the Company or OP Units or Series A Preferred Units of the Operating Partnership or long-term debt of the Company, the Operating Partnership or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the Prospectusits Subsidiaries.
(c) On every date specified in Section 4(p) hereof, the Manager The Partnership shall have received an opinion of Company Counsel, or other counsel reasonably satisfactory furnished to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 hereto, dated such date.
(d) On at every date specified in Section 4(q) hereofof this Agreement, the Manager shall have received an opinion of Maryland Partnership Counsel, or other counsel reasonably addressed to the Manager, and dated as of such date, and in form satisfactory to the Manager, in the form reasonably set forth in Exhibit A hereto.
(d) The Partnership shall have furnished to the Manager, at every date specified in Section 4(q) of this Agreement, an opinion of Xxxxxx X. Xxxxx, Vice President, General Counsel and Secretary of ETP LLC, addressed to the Manager, and dated as of such date, and in form satisfactory to the Manager, with respect to in the matters form set forth in Exhibit B hereto, dated such date.
(e) On every date At the dates specified in Section 4(s4(v) hereofof this Agreement, the Manager shall have received from KPMG LLP, or other independent accountants reasonably the Accountants letters dated the date of delivery thereof and addressed to the Manager in form and substance satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, a Comfort Letter, dated as of such date.
(f) On The Partnership shall have delivered to the Manager, at every date Representation Date specified in Section 4(o4(q) hereofof this Agreement, the Manager shall have received a certificate executed on behalf of the Company, for itself and in its capacity as the general partner two of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer ETP LLC’s executive officers to the effect that that:
(i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 this Agreement are true and correct as of the Representation DateDate with the exception of the representations in Section 2(h) and (i), of which the representation in Section 2(h) and (i) shall be updated in certificates delivered pursuant to this Section 6(f) at subsequent Representation Dates as follows:
(A) The General Partner is the sole general partner of the Partnership with an approximate ____ % general partner interest in the Partnership (the “GP Interest”) as of the date hereof.
(B) As of the date hereof, the limited partners of the Partnership own ____________ Common Units and _____________ Class E Units, representing an approximate ____% limited partner interest in the Partnership, __________ Common Units of which are owned by ETE.
(ii) the Company and the Operating Partnership have has performed their respective such of its obligations under this Agreement that they as are required to perform on be performed at or prior to before such Representation Date, and
(iii) no stop order suspending the effectiveness conditions set forth in paragraphs (a) and (b) of Section 6 have been met. The certificate shall also state that the Units have been duly and validly authorized by the Partnership, that all partnership action required to be taken for the issuance and sale of the Registration Statement Units has been validly and sufficiently taken, and that ETP LLC’s Board of Directors or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there other body with authority has not occurred any Material Adverse Effectrevoked, rescinded or otherwise modified or withdrawn such authorization or partnership action.
(g) On The Manager shall have received, at every date specified in Section 4(r4(u) hereofof this Agreement, the Manager shall have received an favorable opinion of Xxxxxx, Xxxxxxx Xxxxx & Bockius LLP, counsel to the Manager, or other counsel reasonably dated as of such date, and in form and substance satisfactory to the Manager.
(h) The Manager shall have received, at every date specified in Section 4(t) of this Agreement, a certificate of the Secretary of ETP LLC, dated as of such date, and in form and substance reasonably satisfactory to the Manager, dated such date.
(hi) All filings with the Commission required by Rule 424 and Rule 433 under the Act to have been filed by any Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 and (without reliance on Rule 433424(b)(8)).
(ij) The Shares Units shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement Date.
(jk) The Manager There shall not have received from been any decrease in the Company all due diligence materials and information reasonably requested by rating of any of the Manager Partnership’s or its counsel necessary Subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g)(2) under the Manager to satisfy its due diligence obligations.
(k) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland lawAct).
(l) As The Partnership shall have furnished to the Manager, at every date specified in Section 4(q) of this Agreement, such other documents and certificates as the Representatives may reasonably request. If any of the first Settlement Dateconditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager shall have received a copy and counsel for the Manager, this Agreement and all obligations of the Operating Partnership Agreement Amendment duly authorizedManager hereunder may be canceled at, executed and delivered or at any time prior to, any Settlement Date by the CompanyManager.
Appears in 1 contract
Samples: Equity Distribution Agreement (Energy Transfer Partners, L.P.)
Conditions of Manager’s Obligations. The obligations of the Manager hereunder are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any applicable Representation Date, any Time of Sale Date and as of any each Settlement Date, (ii) the performance by the Company and the Operating Partnership of their respective its obligations hereunder and (iii) to the following additional conditions precedent.:
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares for offer offering or sale in any jurisdiction, or to the knowledge of the Company or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Basic Prospectus or the Prospectus, as then amended or supplemented, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, as then amended or supplemented, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None of the Company, the Operating Partnership or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since Subsequent to the respective dates as of which information is given in the Registration Statement, the Basic Prospectus, there shall not have been any change the Prospectus and the Permitted Free Writing Prospectuses, if any, as then amended or supplemented, no material and unfavorable change, financial or otherwise (other than as referred to in the capital stock Registration Statement and Prospectus), in the business, condition or prospects of the Company or OP Units or Series A Preferred Units and its Subsidiaries taken as a whole, in the judgment of the Operating Partnership Manager, shall occur or long-term debt become known and no transaction which is material and unfavorable to the Company (other than as referred to in the Registration Statement and Prospectus) in the judgment of the CompanyManager, shall have been entered into by the Operating Partnership Company or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the Prospectusits Subsidiaries.
(c) On The Company shall furnish to the Manager, at every date specified in Section 4(p4(r) hereofof this Agreement, the Manager shall have received an opinion of Company Counsel, or other counsel reasonably addressed to the Manager, and dated as of such date, and in form satisfactory to the Manager, in the form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 A hereto, dated such date.
(d) On every date specified in Section 4(q) hereof, the Manager The Company shall have received an opinion of Maryland Counsel, or other counsel reasonably satisfactory furnish to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On at every date specified in Section 4(s) hereofof this Agreement, an opinion of Special Counsel, addressed to the Manager, and dated as of such date, and in form satisfactory to the Manager, in the form set forth in Exhibit B hereto.
(e) At the dates specified in Section 4(u) of this Agreement, the Manager shall have received from KPMG LLP, or other independent accountants reasonably the Accountants letters dated the date of delivery thereof and addressed to the Manager in form and substance satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, a Comfort Letter, dated as of such date.
(f) On The Company shall deliver to the Manager, at every date Representation Date specified in Section 4(o4(q) hereofof this Agreement, the Manager shall have received a certificate executed on behalf of the Company, for itself and in its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer an executive officer to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 this Agreement are true and correct as of the Representation Date, (ii) the Company and the Operating Partnership have has performed their respective such of its obligations under this Agreement that they as are required to perform on be performed at or prior to before such Representation Date, and (iii) no stop order suspending the effectiveness conditions set forth in paragraphs (a) and (b) of Section 6 have been met. The certificate shall also state that the Shares have been duly and validly authorized by the Company, that all corporate action required to be taken for the issuance and sale of the Registration Statement Shares has been validly and sufficiently taken, and that the Company’s Board of Directors or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there other body with authority has not occurred any Material Adverse Effectrevoked, rescinded or otherwise modified or withdrawn such authorization or corporate action.
(g) On The Manager shall have received, at every date specified in Section 4(r4(t) hereofof this Agreement, the Manager shall have received an favorable opinion of Xxxxxx, Xxxxx Hunton & Bockius Xxxxxxxx LLP, counsel to the Manager, or other counsel reasonably dated as of such date, and in form and substance satisfactory to the Manager.
(h) The Manager shall have received a certificate of the Secretary or an Assistant Secretary of the Company, dated the date hereof, and in form and substance reasonably satisfactory to the Manager, dated such date.
(hi) All filings with the Commission required by Rule 424 and or Rule 433 under the Act to have been filed by any Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)) and Rule 433, respectively.
(ij) The Shares shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement Date.
(j) The Manager shall have received from the Company all due diligence materials and information reasonably requested by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligations.
(k) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland law.
(l) As of the first Settlement Date, the Manager shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
Appears in 1 contract
Conditions of Manager’s Obligations. The obligations of the Manager hereunder and under any Terms Agreement are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any Representation Dateapplicable date referred to in Section 4(q) of this Agreement, the date of any Time of Sale executed Terms Agreement and as of any each Settlement DateDate and Time of Delivery, (ii) the performance by the Company and the Operating Partnership of their respective its obligations hereunder and (iii) to the following additional conditions precedent.
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares for offer offering or sale in any jurisdiction, or to the knowledge of the Company or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Basic Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Basic Prospectus or Basic Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None of the Company, the Operating Partnership or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since Subsequent to the respective dates as of which information is given in the Registration Statement, the Basic Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any, no material and unfavorable change, financial or otherwise (other than as referred to in the Registration Statement and Prospectus), there in the business, condition or prospects of the Company and each of its Subsidiaries taken as a whole, in the judgment of the Manager, shall not occur or become known and no transaction which is material and unfavorable to the Company (other than as referred to in the Registration Statement and Prospectus) in the judgment of the Manager, shall have been entered into by the Company or any change of its Subsidiaries.
(c) The Company shall furnish to the Manager, at every date specified in Section 4(r) of this Agreement, an opinion of Company Counsel, addressed to the Manager, and dated as of such date, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Delaware, with corporate power and authority to own its properties and conduct its business as described in the Registration Statement, the Basic Prospectuses, the Prospectus and the Permitted Free Writing Prospectuses, if any.
(ii) The Company is duly qualified to transact business in all jurisdictions in which the Company owns or leases real property, and in which the failure to qualify would have a Material Adverse Effect.
(iii) The information contained in the line items “Preferred Stock” and “Common Stock” set forth in the consolidated balance sheet as of the Company’s then most recently completed quarter or fiscal year, contained in the Company’s quarterly report on Form 10-Q or the Company’s annual report on Form 10-K, as applicable, sets forth the authorized, issued and outstanding capital stock of the Company at the indicated dates; the authorized shares of capital stock of the Company have been duly authorized; the issued and outstanding shares of the capital stock of the Company have been duly authorized and validly issued and are fully paid and non-assessable; the certificates for the Shares or OP Units the uncertificated Shares, as the case may be, are in due and proper form; the Shares have been duly authorized and will be validly issued, fully paid and non-assessable when issued and paid for as contemplated by this Agreement and any applicable Terms Agreement; and no preemptive or Series A Preferred Units similar rights of stockholders exist with respect to any of the Operating Partnership Shares or long-term debt the issue and sale thereof.
(iv) The Registration Statement has become effective under the Securities Act and, to such counsel’s knowledge no stop order proceedings with respect thereto have been instituted or are pending or threatened under the Securities Act.
(v) The Registration Statement, the Prospectus and each amendment or supplement thereto and documents incorporated by reference therein comply as to form in all material respects with the requirements of the Company, Securities Act or the Operating Partnership or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equityExchange Act, as applicable, and the applicable rules and regulations thereunder (except that such counsel need express no opinion as to the financial statements, schedules and other financial or results statistical information included or incorporated by reference therein).
(vi) The statements under the caption “Description of operations Our Common Stock” in the Registration Statement, the Basic Prospectuses, the Prospectus and any Permitted Free Writing Prospectus, insofar as such statements constitute a summary of documents referred to therein or matters of law, fairly summarize in all material respects the information called for with respect to such documents and matters.
(vii) The statements under the caption “Certain Government Regulations” in the Company’s Annual Report on Form 10-K for the Company’s then most recently completed year end, as may be updated by a Current Report on Form 8-K filed by the Company with the Commission, and any amendments thereto, as to matters of law stated therein, have been reviewed by such counsel and fairly summarize in all material respects the matters described therein which are material to the business or condition (financial or otherwise) of the Company.
(viii) Such counsel does not know of any contracts or documents required to be filed as exhibits to or incorporated by reference in the Registration Statement or described in the Registration Statement or the Prospectus or any amendment or supplement thereto which are not so filed, incorporated by reference or described as required, and the Operating Partnership provisions of such contracts and documents as are summarized in the Registration Statement or their respective subsidiariesthe Prospectus or any amendment or supplement thereto are fairly summarized in all material respects.
(ix) Such counsel knows of no material legal proceedings pending or threatened against the Company, considered as one enterprise, otherwise than except as set forth or contemplated in the ProspectusRegistration Statement, the effect Basic Prospectuses, the Prospectus and any Permitted Free Writing Prospectus.
(x) The execution and delivery of whichthis Agreement and any applicable Terms Agreement, in any such case described in clause (i) or (ii)and the consummation of the transactions herein and therein contemplated, is in including the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering issuance and sale of the Shares contemplated hereunder on and the performance by the Company of its obligations under this Agreement, do not and will not after any required notice and passage of any applicable grace period conflict with or constitute a violation of any statute or conflict with or result in a breach of any of the terms and or provisions of, constitute a default under or result in the manner contemplated imposition of any lien pursuant to (i) the charter or by-laws of the Company, (ii) any agreement or instrument known to such counsel to which the Company is a party or by which the Company or the Company’s properties may be bound, which conflict, violation, breach, default or lien could reasonably be expected to have a Material Adverse Effect or (iii) any order known to such counsel or rule or regulation of any court or governmental agency or body which in the experience of such counsel is customarily applicable to the transactions herein contemplated (except that such counsel expresses no opinion with respect to any requirement of FINRA or pursuant to any state securities or Blue Sky laws).
(xi) This Agreement and any applicable Terms Agreement have been duly authorized, executed and delivered by the Company.
(xii) The Shares conform in all material respects to the descriptions thereof contained in the Registration Statement, the Basic Prospectuses, the Prospectus and any Permitted Free Writing Prospectus.
(xiii) No approval, consent, order, authorization, designation, declaration or filing by or with any regulatory, administrative or other governmental body is necessary in connection with the execution and delivery by the Company of this Agreement and the performance by the Company of its obligations hereunder (other than as may be required by the Commission or FINRA or as required by state securities and Blue Sky laws as to which such counsel need express no opinion) except such as have been obtained or made by the Company, specifying the same.
(xiv) The Company is not an “investment company” within the meaning of the Investment Company Act of 1940.
(xv) Any required filing pursuant to Rule 433 under the Securities Act of each Permitted Free Writing Prospectus that is identified on Schedule A hereto has been made within the time period required by Rule 433(d) under the Securities Act. In rendering such opinion, such counsel may rely, as to matters governed by laws other than the laws of the State of Ohio, the corporate laws of the State of Delaware or Federal laws, on local counsel in such jurisdictions, provided that in such case such counsel shall state that they believe that they and the Manager are justified in relying on such other counsel and such other counsel shall indicate that the Manager may rely on such opinion. As to matters of fact, to the extent they deem proper, such counsel may rely on certificates of officers of the Company and public officials so long as such counsel states that they have no reason to believe that either the Manager or they are not justified in relying on such certificates. In addition to the matters set forth above, the opinion of Xxxxxxxx, Loop & Xxxxxxxx, LLP shall also include a statement to the effect that nothing has come to the attention of such counsel which leads them to believe that (a) the Registration Statement, as of the time of its effectiveness for purposes of Section 11 of the Securities Act, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, (b) the Prospectus, as of the date of the Prospectus Supplement and as of the date of the opinion, contained or contains an untrue statement of a material fact or omitted 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 , (c) On the Basic Prospectus, as of its date, the date of this Agreement and as of the date of the opinion, in each case together with the Permitted Free Writing Prospectus identified on Schedule A hereto and with the information relating to the public offering price of the Shares as set forth on the cover page of the Prospectus, contained or contains an untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (except that such counsel need express no view as to financial statements, schedules and other financial information included therein). With respect to such statement, Xxxxxxxx, Loop & Xxxxxxxx, LLP may state that this statement is based upon the procedures set forth or incorporated by reference therein, but is without independent check and verification.
(d) The Manager shall have received, at every date specified in Section 4(p4(s) hereofof this Agreement, the favorable opinion of Tax Counsel, dated as of such date, and in form and substance satisfactory to the Manager, stating that based on such counsel’s own review of the Company’s certificate of incorporation, the Company was organized and continues to be organized in conformity with the requirements for qualification as a real estate investment trust under subchapter M of the Internal Revenue Code of 1986, as amended (the “Code”), and, based on such counsel’s review of the Company’s federal income tax returns and discussions with management and independent public accountants for the Company, that the Company, taking into account operations for its taxable and fiscal years ended December 31, 2003 through its most recently completed fiscal year, satisfied the requirements for qualification and taxation as a real estate investment trust under the Code for such years and that its proposed method of operation will enable it to meet the requirements for qualification and taxation as a real estate investment trust under the Code for its current taxable and fiscal year. Furthermore, such counsel shall opine that the statements contained under the heading “U.S. Federal Income Tax Considerations” in the Registration Statement, any Basic Prospectus, the Prospectus or any Permitted Free Writing Prospectus and under the heading “Taxation” in the Company’s Annual Report on Form 10-K for the Company’s then most recently completed year end, and any amendments thereto (and any similar sections or information contained in the Registration Statement, any Basic Prospectus, the Prospectus or any Permitted Free Writing Prospectus) are correct and accurate in all material respects and present fairly and accurately the material aspects of the federal income tax treatment of the Company and of its stockholders.
(e) At the dates specified in Section 4(v) of this Agreement, the Manager shall have received an opinion from the Accountants letters dated the date of Company Counsel, or other counsel reasonably delivery thereof and addressed to the Manager in form and substance satisfactory to the Manager, in form reasonably satisfactory .
(f) The Company shall deliver to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 hereto, dated such date.
(d) On at every date specified in Section 4(q) hereof, the Manager shall have received an opinion of Maryland Counsel, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
this Agreement (e) On every date specified in Section 4(s) hereof, the Manager shall have received from KPMG LLP, or other independent accountants reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Managereach, a Comfort Letter“Certificate Date”), dated as of such date.
(f) On every date specified in Section 4(o) hereof, the Manager shall have received a certificate executed on behalf of the Company, for itself and in two of its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer executive officers to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 this Agreement are true and correct as of the Representation Certificate Date, (ii) the Company and the Operating Partnership have has performed their respective such of its obligations under this Agreement that they as are required to perform on be performed at or prior to before each such Representation Certificate Date, and (iii) no stop order suspending the effectiveness conditions set forth in paragraphs (a) and (b) of Section 6 have been met. In addition, on each Certificate Date, the certificate shall also state that the Shares have been duly and validly authorized by the Company, that all corporate action required to be taken for the issuance and sale of the Registration Statement Shares has been validly and sufficiently taken, and that the Company’s Board of Directors or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there other body with authority has not occurred any Material Adverse Effectrevoked, rescinded or otherwise modified or withdrawn such authorization or corporate action.
(g) On The Manager shall have received, at every date specified in Section 4(r4(u) hereofof this Agreement, the Manager shall have received an favorable opinion of Xxxxxx, Xxxxx & Bockius XxXxxxx LLP, counsel to the Manager, or other counsel reasonably dated as of such date, and in form and substance satisfactory to the Manager.
(h) The Manager shall have received, at every date specified in Section 4(t) of this Agreement, a certificate of the Secretary of the Company, dated as of such date, and in form and substance reasonably satisfactory to the Manager, dated such date.
(hi) All filings with the Commission required by Rule 424 and Rule 433 under the Act to have been filed by any the Settlement Date or the Time of Delivery, as the case may be, shall have been made within the applicable time period prescribed for such filing by Rule 424 and Rule 433424.
(ij) The Shares shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement DateDate or the Time of Delivery, as the case may be.
(j) The Manager shall have received from the Company all due diligence materials and information reasonably requested by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligations.
(k) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland law.
(l) As of the first Settlement Date, the Manager shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
Appears in 1 contract
Samples: Equity Distribution Agreement (Health Care Reit Inc /De/)
Conditions of Manager’s Obligations. The obligations of the Manager hereunder are subject to (i) the accuracy of the representations and warranties on the part of the Company Company, the Partnership and the Operating Partnership KMI on the date hereof, any Representation Date, any Time applicable date referred to in Section 4(n) of Sale this Agreement and as of any each Settlement Date, (ii) the performance by the Company Company, the Partnership and the Operating Partnership KMI of their respective obligations hereunder and (iii) to the following additional conditions precedent.
(i) No stop order with respect to suspending the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has under the Act shall have been issued and no proceedings for such purpose shall be pending before or threatened by the Commission, Commission and no suspension any requests for additional information on the part of the qualification Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Shares for offer or sale in any jurisdiction, or to the knowledge of the Company or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurredManager; (ii) each part of the Registration Statement and all amendments thereto any amendment thereto, at the time it became effective, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iii) none of the Basic Prospectus or the Prospectus, and no amendment as amended or supplement theretosupplemented, shall include an not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are were made, not misleading; .
(i) None of the Company, the Partnership, KMI or their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree that could reasonably be expected to have a Material Adverse Effect, and (ii) since the respective dates as of which information is given in the Prospectus, there shall not have been any change, or any development involving a prospective change, in the limited liability company interests, partnership interests, capital stock or long-term debt of the Company, the Partnership, KMI or any of their respective subsidiaries that would constitute a material adverse change to either (A) the Company and its subsidiary and the Partnership and its subsidiaries taken as a whole, or (B) KMI and its subsidiaries taken as a whole, or any material adverse change in the general affairs, management, financial position or results of operations of either (Y) the Company and its subsidiary and the Partnership and its subsidiaries taken as a whole, or (Z) KMI and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, in the case of either clause (i) or this clause (ii), other than as set forth in or contemplated by the Prospectus, if in the judgment of the Manager any such change makes it impracticable or inadvisable to consummate the sale and delivery of the Shares as contemplated in the Prospectus.
(c) The Company shall have furnished to the Manager, at every date specified in Section 4(n) of this Agreement, the written opinion of Company Counsel, or other counsel satisfactory to the Manager, dated as of such date, as specified in Section 4(o).
(d) At the dates specified in Section 4(r) of this Agreement, the Manager shall have received from the Company’s, the Partnership’s and KMI’s accountants the letters, dated as of such date, as specified in Section 4(r).
(e) The Company shall have delivered to the Manager, at every date specified in Section 4(n) of this Agreement (each, a “Certificate Date”), a certificate of an executive officer of the Company, which shall certify on behalf of the Company and the Partnership, and a certificate of an executive officer of KMI, to the best of his or her respective knowledge after reasonable investigation, that (i) the representations and warranties of the Company, the Partnership and KMI, as applicable, as set forth in this Agreement are true and correct as of the Certificate Date, (ii) each of the Company, the Partnership and KMI, as applicable, has performed such of its obligations under this Agreement as are to be performed at or before each such Certificate Date, (iii) no stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus under the Act has been issued and no proceedings for such purpose are pending before or threatened by the Commission, (iv) no each part of the Registration Statement and any amendment thereto, at the time it became effective, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (v) the Prospectus, together with as amended or supplemented, does not contain any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are were made, not misleading; (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of (A) the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make Company and its subsidiary and the statements therein, in the light of the circumstances under which they are made, not misleading.
Partnership and its subsidiaries and (iB) None of the Company, the Operating Partnership or any of their respective KMI and it subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus Prospectus, any loss or interference with its business or the Properties from fire, explosion, flood or other calamity calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decreedecree that could reasonably be expected to have a Material Adverse Effect, otherwise other than as set forth in or contemplated in by the Prospectus, and (iivii) since the respective dates as of which information is given in the Prospectus, there shall has not have been any change in the capital stock of the Company or OP Units or Series A Preferred Units of the Operating Partnership or long-term debt of the Company, the Operating Partnership or any of their respective subsidiaries or any change, or any development involving a prospective change, in the limited liability company interests, partnership interests, capital stock or affecting long-term debt of the Company, the Partnership, KMI or any of their respective subsidiaries that would constitute a material adverse change to either (A) the Company and its subsidiary and the Partnership and its subsidiaries taken as a whole, or (B) KMI and its subsidiaries taken as a whole, or any material adverse change in the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, position or results of operations of either (Y) the CompanyCompany and its subsidiary and the Partnership and its subsidiaries taken as a whole, or (Z) KMI and its subsidiaries taken as a whole, whether or not arising in the Operating Partnership or their respective subsidiariesordinary course of business, considered as one enterprise, otherwise other than as set forth in or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in by the Prospectus.
(cf) On The Manager shall have received, at every date specified in Section 4(p4(n) hereofof this Agreement, the Manager shall have received an written opinion of Company CounselXxxxxxx Xxxxx LLP, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 hereto, dated such date.
(d) On every date specified in Section 4(q) hereof, the Manager shall have received an opinion of Maryland Counsel, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On every date specified in Section 4(s) hereof, the Manager shall have received from KPMG LLP, or other independent accountants reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, a Comfort Letter, dated as of such date, as specified in Section 4(q).
(fg) On The Manager shall have received, at every date specified in Section 4(o4(n) hereofof this Agreement, the Manager shall have received a certificate executed of the Secretary of the Company on behalf of the Company, for itself and in its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 are true and correct of the Secretary of KMI, dated as of the Representation Datesuch date, (ii) the Company and the Operating Partnership have performed their respective obligations under this Agreement that they are required to perform on or prior to such Representation Date, (iii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there has not occurred any Material Adverse Effect.
(g) On every date as specified in Section 4(r) hereof, the Manager shall have received an opinion of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Manager, or other counsel reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, dated such date4(p).
(h) All filings with respect to the Commission Shares required by Rule 424 and Rule 433 under of the Act Rules to have been filed with the Commission by any the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 and Rule 433424.
(i) The Shares shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement Date.
(j) The Manager shall have received from the Company all due diligence materials and information reasonably requested by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligations.
(k) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland law.
(l) As of the first Settlement Date, the Manager shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
Appears in 1 contract
Samples: Equity Distribution Agreement (Kinder Morgan Management LLC)
Conditions of Manager’s Obligations. The obligations of the Manager hereunder are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any Representation Date, any Time of Sale hereof and as of any each Registration Statement Amendment Date, Company Earnings Report Date, Company Periodic Report Date, Applicable Time and Settlement Date, (ii) the performance by the Company and the Operating Partnership of their respective its obligations hereunder and (iii) to the following additional conditions precedent.:
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the 1933 Act or the 1933 Act Regulations or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, 0000 Xxx and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares for offer offering or sale in any jurisdiction, or to the knowledge of the Company or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto thereto, or modifications thereof, if any, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Basic Prospectus and all amendments or the Prospectussupplements thereto, or modifications thereof, if any, and no amendment or supplement thereto, the General Disclosure Package shall include not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; , (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(i) None of the Company, the Operating Partnership or any of their respective subsidiaries Company shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in filed the Prospectus, and any amendments and supplements thereto, with the Commission (iiincluding the information required by Rule 430B) since the respective dates as of which information is given in the Prospectusmanner and within the time period required by the 1933 Act and the 1933 Act Regulations, and any post-effective amendment thereto containing the information required by Rule 430B shall have become effective, and (v) all material required to be filed by the Company pursuant to Rule 433(d) shall have been filed with the Commission within the applicable time periods prescribed for such filings under Rule 433.
(b) In the judgment of the Manager, there shall not have been occurred any change in the capital stock of the Company or OP Units or Series A Preferred Units of the Operating Partnership or long-term debt of the Company, the Operating Partnership or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the ProspectusMaterial Adverse Effect.
(c) On The Company shall cause to be furnished to the Manager, on every date specified in Section 4(p3(n) hereofhereof (except as provided in the last sentence of Section 3(n)), the Manager shall have received an opinion and negative assurance letter of Company Counsel, or other counsel reasonably satisfactory Ropes & Xxxx LLP addressed to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 hereto, dated such date.
(d) On every date specified in Section 4(q) hereof, the Manager shall have received an opinion of Maryland Counsel, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On every date specified in Section 4(s) hereof, the Manager shall have received from KPMG LLP, or other independent accountants reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, a Comfort Letter, dated as of such date, in form satisfactory to the Manager and its counsel, substantially in the form of Exhibit B-1 and Exhibit B-2 attached hereto.
(fd) On The Company shall cause to be furnished to the Manager, on every date specified in Section 4(o3(o) hereofhereof (except as provided in the last sentence of Section 3(o)), from PricewaterhouseCoopers LLP letters dated the date of delivery thereof and addressed to the Manager in form and substance satisfactory to the Manager, its counsel and PricewaterhouseCoopers LLP, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements of the Company and its subsidiaries included or incorporated by reference in the Registration Statement.
(e) The Company shall have received furnish to the Manager, on each date specified in Section 3(m) hereof (except as provided in the last sentence of Section 3(m)), a certificate executed on behalf of the Company, for itself and in two of its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer executive officers to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 this Agreement are true and correct as of the Representation date of such certificate (the “Certificate Date”), (ii) the Company and the Operating Partnership shall have performed their respective such of its obligations under this Agreement that they as are required to perform on be performed at or prior to before each such Representation Certificate Date, and (iii) no stop order suspending the effectiveness conditions set forth in paragraphs (a) and (b) of the Registration Statement or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to this Section 8A of the Act shall 4 have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there has not occurred any Material Adverse Effectmet.
(gf) On the date hereof, the Manager shall have received the opinion of Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP dated the date hereof and addressed to the Manager in form and substance satisfactory to the Manager. On every date specified in Section 4(r3(n) hereof, the Manager shall have received an opinion a negative assurance letter of Xxxxxx, Xxxxxx Xxxxxxxx Xxxxx & Bockius Xxxxxxxx LLP, counsel to the Manager, or other counsel reasonably satisfactory to the Managerdated as of such date, in form and substance reasonably satisfactory to the Manager, dated such date.
(hg) All filings with the Commission required by Rule 424 and Rule 433 under of the 1933 Act Regulations to have been filed by any each Applicable Time or related Settlement Date Date, as the case may be, shall have been made within the applicable time period prescribed for such filing by Rule 424 and (without reliance on Rule 433424(b)(8)).
(ih) The Settlement Shares shall have been approved for listing on the NYSE, subject only to official notice of issuance at or prior issuance. The Manager acknowledges that as of the date of this Agreement, 4,500,000 shares of Common Stock have been approved for listing on the NYSE.
(i) The Company shall have furnished to the first Manager such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement, the Prospectus and the General Disclosure Package as of each Settlement DateDate as the Manager may reasonably request.
(j) The Manager Company shall have received from paid the Company all due diligence materials required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the 1933 Act Regulations without regard to the proviso therein and information reasonably requested by otherwise in accordance with Rules 456(b) and 457(r) of the Manager or its counsel necessary for the Manager to satisfy its due diligence obligations1933 Act Regulations.
(k) As FINRA shall not have raised any objection with respect to the fairness and reasonableness of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT terms and shall be effective arrangements under Maryland lawthis Agreement.
(l) As No amendment or supplement to the Registration Statement or Prospectus, including documents deemed to be incorporated by reference therein, shall be filed to which the Manager objects in writing.
(m) Since the later of the first Settlement Datetime of execution of this Agreement and the most recent Applicable Time, there shall not have occurred any downgrading, nor shall any notice or announcement have been given or made of (i) any intended or potential downgrading or (ii) any review or possible change that does not indicate an improvement, in the Manager shall have received a copy rating accorded any securities of or guaranteed by the Company by any “nationally recognized statistical rating organization,” as that term is defined in Rule 436(g)(2) of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company1933 Act Regulations.
Appears in 1 contract
Samples: Distribution Agency Agreement (Affiliated Managers Group Inc)
Conditions of Manager’s Obligations. The obligations of the Manager hereunder are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any applicable Representation Date, any Time of Sale Date and as of any each Settlement Date, (ii) the performance by the Company and the Operating Partnership of their respective its obligations hereunder and (iii) to the following additional conditions precedent.
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares Units for offer offering or sale in any jurisdiction, or to the knowledge of the Company Partnership or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Basic Base Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the any Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (viv) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None of the Company, the Operating Partnership or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since Subsequent to the respective dates as of which information is given in the ProspectusRegistration Statement, Prospectus and any Permitted Free Writing Prospectuses, there shall not have been any change in the capital stock of the Company or OP Units or Series A Preferred Units of the Operating Partnership or long-term debt of the Company, the Operating Partnership or any of their respective subsidiaries or occurred any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equitybusiness, as applicableprospects, or results of operations of the Company, Companies and the Operating Partnership or their respective subsidiariesSubsidiaries not contemplated by the Registration Statement and Prospectus, considered as one enterprise, otherwise than as set forth or contemplated that in the Prospectus, the effect judgment of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with , would materially, adversely affect the offering and sale of market for the Shares contemplated hereunder on the terms and in the manner contemplated in the ProspectusUnits.
(c) On The Partnership shall furnish to the Manager, at every date specified in Section 4(o) of this Agreement, an opinion of E. Xxxxx Xxxxxxx, addressed to the Manager, and dated as of such date, and in form satisfactory to the Manager, in the form set forth in Exhibit A hereto.
(d) The Partnership shall furnish to the Manager, at every date specified in Section 4(p) hereofof this Agreement, the Manager shall have received an opinion of Company CounselFulbright & Xxxxxxxx L.L.P., counsel for the Partnership, or other counsel reasonably satisfactory to the Manager, addressed to the Manager, and dated as of such date, and in form satisfactory to the Manager, in the form reasonably satisfactory set forth in Exhibit B hereto.
(e) The Partnership shall furnish to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 hereto, dated such date.
(d) On at every date specified in Section 4(q) hereofof this Agreement, the Manager shall have received an opinion of Maryland FERC Counsel, or other counsel reasonably addressed to the Manager, and dated as of such date, and in form satisfactory to the Manager, in the form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B C hereto, dated such date.
(ef) On every date At the dates specified in Section 4(s4(u) hereofof this Agreement, the Manager shall have received from KPMG LLP, or other independent accountants reasonably the Accountants letters dated the date of delivery thereof and addressed to the Manager in form and substance satisfactory to the Manager, in form and substance reasonably satisfactory .
(g) The Partnership shall deliver to the Manager, a Comfort Letter, dated as of such date.
(f) On at every date Representation Date specified in Section 4(o4(n) hereofof this Agreement, the Manager shall have received a certificate executed on behalf of the Company, for itself and in its capacity as the general partner an executive officer of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer Enbridge Management to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 this Agreement are true and correct as of the Representation Date, (ii) the Company and the Operating Partnership have has performed their respective such of its obligations under this Agreement that they as are required to perform on be performed at or prior to before such Representation Date, and (iii) no stop order suspending the effectiveness conditions set forth in paragraphs (a) and (b) of Section 6 have been met. The certificate shall also state that the Units have been duly and validly authorized by the Partnership, that all corporate action required to be taken for the issuance and sale of the Registration Statement Units has been validly and sufficiently taken, and that the Board of Directors of Enbridge Management or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there other body with authority has not occurred any Material Adverse Effectrevoked, rescinded or otherwise modified or withdrawn such authorization or corporate action.
(gh) On The Manager shall have received, at every date specified in Section 4(r4(t) hereofof this Agreement, the Manager shall have received an favorable opinion of Xxxxxx, Xxxxx & Bockius LLPXxxxx L.L.P., counsel to the Manager, or other counsel reasonably dated as of such date, and in form and substance satisfactory to the Manager.
(i) The Manager shall have received, at every date specified in Section 4(s) of this Agreement, a certificate of the Secretary of Enbridge Management, dated as of such date, and in form and substance reasonably satisfactory to the Manager, dated such date.
(hj) All filings with the Commission required by Rule 424 and or Rule 433 under the Act to have been filed by any Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)) and Rule 433, respectively.
(ik) The Shares Units shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement Date.
(j) The Manager shall have received from the Company all due diligence materials and information reasonably requested by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligations.
(k) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland law.
(l) As of the first Settlement Date, the Manager shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
Appears in 1 contract
Samples: Equity Distribution Agreement (Enbridge Energy Partners Lp)
Conditions of Manager’s Obligations. The obligations of the Manager hereunder are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership Oak Circle on the date hereof, any Representation Date, any Time applicable date referred to in Section 5(p) of Sale this Agreement and as of any each Settlement Date, (ii) the performance by each of the Company and the Operating Partnership Oak Circle of their respective its obligations hereunder and (iii) to the following additional conditions precedent.
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares for offer offering or sale in any jurisdiction, or to the knowledge of the Company or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Basic Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None of the Company, the Operating Partnership or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since Subsequent to the respective dates as of which information is given in the Registration Statement, the Basic Prospectus, there shall not have been any change the Prospectus and the Permitted Free Writing Prospectuses, if any, no material and unfavorable change, financial or otherwise (other than as referred to in the capital stock Registration Statement and Prospectus), in the business, condition or prospects of the Company or OP Units or Series A Preferred Units and each of its subsidiaries taken as a whole, in the judgment of the Operating Partnership Manager, shall occur or long-term debt become known and no transaction which is material and unfavorable to the Company (other than as referred to in the Registration Statement and Prospectus) in the judgment of the CompanyManager, shall have been entered into by the Operating Partnership Company or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective its subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the Prospectus.
(c) On The Company shall have furnished to the Manager, at every date Representation Date, as specified in Section 4(p5(q) hereofof this Agreement, the Manager shall have received an opinion opinions of Company Counsel, or other counsel reasonably addressed to the Manager, and dated as of such date, and in form satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters forms set forth in Exhibit A-1 and Exhibit A-2 hereto, dated such date.
(d) On The Company shall have furnished to the Manager, at every date Representation Date specified in Section 4(q5(r) hereofof this Agreement, the Manager shall have received an opinion of Maryland Counsel, or other counsel reasonably addressed to the Manager, and dated as of such date, and in form satisfactory to the Manager, in the form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On every date At the dates specified in Section 4(s5(u) hereofof this Agreement, the Manager shall have received from KPMG LLP, or other independent accountants reasonably Xxxxx Xxxxxxxx letters dated the date of delivery thereof and addressed to the Manager in form and substance satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, a Comfort Letter, dated as of such date.
(f) On every date The Company shall have delivered to the Manager, on or prior to four days after each Representation Date, as specified in Section 4(o5(p) hereofof this Agreement, the Manager shall have received a certificate executed on behalf of the Company, for itself and in two of its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer executive officers to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 this Agreement are true and correct as of the Representation Datesuch delivery date, (ii) the Company and the Operating Partnership have has performed their respective such of its obligations under this Agreement that they as are required to perform on be performed at or prior to before each such Representation Datedelivery date, and (iii) no stop order suspending the effectiveness conditions set forth in paragraphs (a) and (b) of Section 8 have been met. The certificate shall also state that the Shares have been duly and validly authorized by the Company, that all corporate action required to be taken for the issuance and sale of the Registration Statement Shares has been validly and sufficiently taken, and that the Company’s Board of Directors or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there other body with authority has not occurred any Material Adverse Effectrevoked, rescinded or otherwise modified or withdrawn such authorization or corporate action.
(g) On The Manager shall have received, at every date specified in Section 4(r5(q) hereofof this Agreement, the Manager shall have received an favorable written opinion of XxxxxxFried, Xxxxx Frank, Harris, Xxxxxxx & Bockius Xxxxxxxx LLP, or such other counsel to the Manager (“Manager’s Counsel”), or other counsel reasonably dated as of such date, and in form and substance satisfactory to the Manager.
(h) The Manager shall have received, at every Representation Date, as specified in Section 5(s) of this Agreement, a certificate of the Secretary of the Company, dated as of such date, and in form and substance reasonably satisfactory to the Manager, dated such date.
(hi) All filings with the Commission required by Rule 424 and Rule 433 under the Act to have been filed by any the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 and Rule 433424.
(ij) The Shares shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement Date.
(jk) Oak Circle shall deliver to the Manager, on the date hereof, a certificate of two of its executive officers to the effect that (i) the representations and warranties of Oak Circle as set forth in this Agreement are true and correct as of such delivery date and (ii) Oak Circle has performed such of its obligations under this Agreement as are to be performed at or before each such delivery date.
(l) Oak Circle shall furnish to the Manager, on the date hereof, an opinion of Company Counsel, addressed to the Manager, and dated as of such date, and in form satisfactory to the Manager, in the form set forth in Exhibit A hereto.
(m) The Manager shall have received from received, on the Company all due diligence materials date hereof, a certificate of the Secretary of Oak Circle, dated as of such date, and information reasonably requested by in form and substance satisfactory to the Manager or its counsel necessary for the Manager to satisfy its due diligence obligationsManager.
(kn) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland law.
(l) As of the first Settlement Date, the The Manager shall have received received, at every Representation Date, as specified in Sections 5(t) of this Agreement, a copy certificate of the Operating Partnership Agreement Amendment duly authorizedChief Financial Officer of the Company and Oak Circle, executed dated as of such date, and delivered by in form satisfactory to the CompanyManager, in the form set forth in Exhibit C hereto.
Appears in 1 contract
Samples: Distribution Agency Agreement (Five Oaks Investment Corp.)
Conditions of Manager’s Obligations. The obligations of the Manager hereunder are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any as of each Representation Date, any Time of Sale Date and as of any each Settlement Date, (ii) the performance by the Company and the Operating Partnership of their respective its obligations hereunder and (iii) to the following additional conditions precedent.:
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares for offer offering or sale in any jurisdiction, or to the knowledge of the Company or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto Statement, as amended, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Basic Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (v) no General Disclosure Package, and no amendment or supplement theretoas amended, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (viiv) none of the no Prospectus, together with all Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None of the Company, the Operating Partnership or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since Subsequent to the respective dates as of which information is given in the Registration Statement, the Basic Prospectus, there the Prospectus and the Permitted Free Writing Prospectuses, if any, no Material Adverse Change, in the judgment of the Manager, shall not have occurred (other than as referred to in the Registration Statement and Prospectus); and no transaction which is material and unfavorable to the Company (other than as referred to in the Registration Statement and the Prospectus) in the judgment of the Manager, shall have been any change in the capital stock of entered into by the Company or OP Units or Series A Preferred Units of the Operating Partnership or long-term debt of the Company, the Operating Partnership or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the ProspectusEmpire Gas.
(c) On The Company shall furnish to the Manager, at every date specified in Section 4(p) hereofof this Agreement, the Manager shall have received an opinion of Company Counsel, or other counsel reasonably satisfactory addressed to the Manager, and dated as of such date, and in form reasonably satisfactory to the Manager, with respect to in the matters form set forth in Exhibit Exhibits A-1 and Exhibit A-2 hereto, dated such date.
(d) On The Company shall furnish to the Manager, at every date specified in Section 4(q) hereofof this Agreement, the Manager shall have received an opinion of Maryland Missouri Counsel, or other counsel reasonably satisfactory addressed to the Manager, and dated as of such date, and in form reasonably satisfactory to the Manager, with respect to in the matters form set forth in Exhibit B hereto, dated such date.
(e) On The Company shall furnish to the Manager, at every date specified in Section 4(r) of this Agreement, an opinion of Kansas Counsel, addressed to the Manager, and dated as of such date, and in form reasonably satisfactory to the Manager, in the form set forth in Exhibit C hereto.
(f) The Company shall furnish to the Manager, at every date specified in Section 4(s) hereofof this Agreement, an opinion of Special Regulatory Counsel, addressed to the Manager, and dated as of such date, and in form reasonably satisfactory to the Manager, in the form set forth in Exhibit D hereto.
(g) At the dates specified in Section 4(v) of this Agreement, the Manager shall have received from KPMG LLP, or other independent accountants reasonably satisfactory the Accountants a letter dated the date of delivery thereof and addressed to the Manager, Manager in form and substance reasonably satisfactory to the Manager, a Comfort Letter, dated as of such date.
(fh) On The Company shall deliver to the Manager, at every date specified in Section 4(o) hereofRepresentation Date, the Manager shall have received a certificate executed signed on behalf of the Company by the Company, for itself and in its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer 's chief executive officer or chief financial officer to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 this Agreement are true and correct as of the Representation Date, (ii) the Company and the Operating Partnership have has performed their respective such of its obligations under this Agreement that they as are required to perform on be performed at or prior to before each such Representation Date, and (iii) no stop order suspending the effectiveness conditions set forth in paragraphs (a) and (b) of Section 6 have been met. The certificate shall also state that the Shares have been duly and validly authorized by the Company, that all corporate action required to be taken for the issuance and sale of the Registration Statement Shares has been validly and sufficiently taken, and that the Company’s Board of Directors or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there other body with authority has not occurred any Material Adverse Effectrevoked, rescinded or otherwise modified or withdrawn such authorization or corporate action.
(gi) On The Manager shall have received, at every date specified in Section 4(r4(u) hereofof this Agreement, the Manager shall have received an favorable opinion of Xxxxxx, Xxxxx Dxxxx & Bockius LxXxxxx LLP, counsel to the Manager, or other counsel reasonably satisfactory to the Managerdated as of such date, and in form and substance reasonably satisfactory to the Manager, dated such date.
(hj) The Manager shall have received, at every date specified in Section 4(t) of this Agreement, a certificate of the Secretary of the Company, dated as of such date, and in form and substance reasonably satisfactory to the Manager.
(k) All filings with the Commission required by Rule 424 and Rule 433 under the Act to have been filed by any the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 and Rule 433424.
(il) The Shares shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement Date.
(j) The Manager shall have received from the Company all due diligence materials and information reasonably requested by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligations.
(k) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland law.
(l) As of the first Settlement Date, the Manager shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
Appears in 1 contract
Samples: Equity Distribution Agreement (Empire District Electric Co)
Conditions of Manager’s Obligations. The obligations of the Manager hereunder and under any Terms Agreement are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any Representation Dateapplicable date referred to in Section 4(l) of this Agreement, the date of any Time of Sale executed Terms Agreement and as of any each Settlement DateDate and Time of Delivery, (ii) the performance by the Company and the Operating Partnership of their respective its obligations hereunder and (iii) to the following additional conditions precedent.:
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares for offer offering or sale in any jurisdiction, or to the knowledge of the Company or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto thereto, or modifications thereof, if any, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iii) none of the Basic Prospectus and all amendments or the Prospectus, and no amendment or supplement supplements thereto, or modifications thereof, if any, shall include not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None No material and unfavorable change, financial or otherwise (other than as referred to in the Registration Statement and Prospectus), in the business, condition or prospects of the Company, Company and its Subsidiaries taken as a whole shall occur or become known and no transaction which is material and unfavorable to the Operating Partnership Company (other than as referred to in the Registration Statement and Prospectus) shall have been entered into by the Company or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since the respective dates as of which information is given in the Prospectus, there shall not have been any change in the capital stock of the Company or OP Units or Series A Preferred Units of the Operating Partnership or long-term debt of the Company, the Operating Partnership or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the ProspectusSubsidiaries.
(c) On The Company shall furnish to the Manager, at every date specified in Section 4(p4(m) hereofof this Agreement, the Manager shall have received an opinion of Company Counsel, or other counsel reasonably satisfactory addressed to the Manager, and dated as of such date, and in form reasonably satisfactory to the Manager, stating that:
(i) Each of the Subsidiaries is a corporation duly incorporated, existing and in good standing under the laws of the jurisdiction of its incorporation and has the corporate power to conduct all the activities conducted by it, to own or lease all the assets owned or leased by it and to conduct its business as described in the Registration Statement and the Prospectus. Each Subsidiary is duly qualified to do business as a foreign corporation in good standing in each jurisdiction set forth in the Fact Certificate. To such counsel’s knowledge, based solely on an examination of the capital stock records of IWLG, IMH Assets and IFC, the Company is the sole record owner, and to such counsel’s knowledge, based solely on the Fact Certificate, the sole beneficial owner of all of the outstanding capital stock of IWLG and IMH Assets, and of all of the outstanding preferred stock and common stock of IFC as described in the Registration Statement and the Prospectus. To such counsel’s knowledge, based solely on the Fact Certificate, IFC is the beneficial owner of all of the outstanding capital stock of SAC;
(ii) All of the outstanding shares of the capital stock of the Subsidiaries have been duly authorized, validly issued, fully paid and nonassessable and to such counsel’s knowledge were, not issued in violation of any preemptive right, resale right, right of first refusal or similar right under (a) the statutes, judicial and administrative decisions and the rules and regulations of the governmental agencies of the State of California, (b) such Subsidiaries’ articles of incorporation or by-laws or (c) the express terms of any instrument, document, contract or other agreement listed on Appendix A of such opinion;
(iii) The descriptions in the Prospectus of documents under the caption “Description of Capital Stock”, as such descriptions may have been updated or amended by descriptions in the Prospectus Supplement, or incorporated by reference therein, insofar as they constitute summaries of documents, fairly present, in all material respects, the information with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 hereto, dated such date.those documents;
(div) On every date specified in Section 4(q) hereofThe Registration Statement has become effective under the Act and, the Manager shall have received an opinion of Maryland Counsel, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, such counsel’s knowledge based solely on a telephone conversation with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On every date specified in Section 4(s) hereof, the Manager shall have received from KPMG LLP, or other independent accountants reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, a Comfort Letter, dated as of such date.
(f) On every date specified in Section 4(o) hereof, the Manager shall have received a certificate executed on behalf member of the Company, for itself and in its capacity as the general partner staff of the Operating PartnershipCommission, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 are true and correct as of the Representation Date, (ii) the Company and the Operating Partnership have performed their respective obligations under this Agreement that they are required to perform on or prior to such Representation Date, (iii) no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose has been instituted or any post-is threatened, pending or contemplated;
(v) The Registration Statement, the Prospectus and the Prospectus Supplement, as of their respective effective amendment or issue dates, complied in all material respects as to form with the requirements of the Act (except that such counsel expresses no opinion as to financial statements and related schedules and other financial or statistical data contained in, or omitted from, the Registration Statement, the Prospectus, the Prospectus Supplement or incorporated by reference therein);
(vi) To such counsel’s knowledge, each instrument, document, lease, license, contract or other agreement listed on Appendix A to the opinion (collectively, “Documents”) that is required by the Act to be described or referred to in the Registration Statement, the Prospectus or the Prospectus Supplement or filed or incorporated by reference as exhibits to the Registration Statement shall be have been so described, referred to, or filed, as the case may be. The descriptions of or references to those Documents in effectthe Registration Statement are correct in all material respects;
(vii) The execution and delivery by the Company of, and no proceedings for such purpose or pursuant to Section 8A the performance by the Company of its agreements in, this Agreement do not and will not, as of the Act shall have been instituted ordate of such opinion, (i) breach or result in a default under, cause the time for performance of any obligation to be accelerated under, or result in the knowledge creation or imposition of any lien, charge or encumbrance upon any of the assets of the Company or any of the Subsidiaries or NFS pursuant to, the express terms of any of the Documents, (ii) breach or violate any existing obligation of the Company under any court or administrative order, judgment or decree of which such counsel has knowledge and that names the Company, the Subsidiaries or NFS and is specifically directed to the Company or its properties, the Subsidiaries or NFS or its properties or (iii) to such counsel’s knowledge, violate the applicable provisions of any federal statute or regulation, or any statute or regulation of the State of California existing or in effect as of the date of such opinion as are in such counsel’s experience of general application to transactions of the sort contemplated by the Agreement;
(viii) No consent, approval, authorization or order of, or any filing or declaration with, any California, New York or federal court, governmental agency, regulatory commission, board, authority or body is required in connection with the execution, delivery and performance of this Agreement by the Company or the taking by the Company of any action provided for thereby or, if so required, all such consents, approvals, authorizations and orders have been obtained, and all such filings and declarations have been made, and are in full force and effect, except such as may be required under state securities or blue sky laws or similar laws and any rules or regulations thereunder or by the by-laws and rules of the NASD in connection with the purchase and distribution by the Manager of the Shares, as to all of which such counsel need not express any opinion;
(ix) To such counsel’s knowledge, without investigation, except as set forth in or contemplated by the Registration Statement and the Operating PartnershipProspectus, there are no actions, suits, proceedings or investigations pending or overtly threatened in writing against the Company, any of the Subsidiaries or NFS before or by any court, governmental agency or arbitrator that seek to (i) challenge the Commission legality or enforceability of this Agreement, (ii) challenge the legality or enforceability of any of the Documents and involve an amount in excess of $25,000,000, (iii) impose criminal penalties upon the Company, any of the Subsidiaries or NFS in an amount in excess of $25,000,000, or (iv) for enjoin any of the period from business activities of the Company, any of the Subsidiaries or NFS or the transactions described in the Registration Statement and including Prospectus;
(x) Based on information contained in the Registration Statement, the Prospectus, the Prospectus Supplement and the Fact Certificate of an officer dated the date of this Agreement through the opinion, none of the Company, any of the Subsidiaries or NFS is, or will be, solely as a result of its receipt and including use of the net proceeds of the offering as set forth in the Prospectus under the caption “Use of Proceeds”, an “investment company” or an “affiliated person” of, or “promoter” or “principal underwriter” for, an “investment company,” as such Representation Date, there has not occurred any Material Adverse Effect.terms are defined in the Investment Company Act;
(gxi) On every date specified in Section 4(r) hereof, Based solely on the Manager shall have received an opinion Company’s application for listing of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Manager, or other counsel reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Manageradditional shares, dated such date.
(h) All filings with the Commission required April 16, 2004, as countersigned by Rule 424 and Rule 433 under the Act to have been filed by any Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 and Rule 433.
(i) The Shares shall have been approved for listing on the NYSE, subject only to the Shares have been duly authorized for listing by the NYSE upon official notice of issuance at issuance; and
(xii) Such counsel is not opining as to factual matters, and the character of determinations involved in the registration process is such that such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or prior fairness of the information included in the Registration Statement, the Prospectus or the Prospectus Supplement. Such counsel has made no independent investigation or verification of the information included in the Registration Statement, Prospectus or the Prospectus Supplement (except as and to the first Settlement Date.
extent set forth in subparagraph (jiii) The above), including information or documents contained in reports incorporated by reference therein. Such counsel has reviewed the Registration Statement, the Prospectus and the Prospectus Supplement and participated in conferences and, such counsel can advise the Manager shall have received that nothing has come to the attention of such counsel that causes such counsel to believe that, at the time it became effective, the Registration Statement contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements contained therein not misleading, or that the Prospectus, or the Prospectus Supplement (including any amendment or supplement thereto), at the time any such amended or supplemented Prospectus or Prospectus Supplement, as the case may be, was issued, or at the date of the opinion, contained or contains any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements contained therein, in light of the circumstances in which they were made not misleading (except that such counsel need not express any opinion with respect to financial statements and related notes and schedules, or any other financial, accounting and statistical data included in, incorporated by reference in, or omitted from the Company all due diligence materials and information reasonably requested by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligations.
(k) As of the first Settlement DateRegistration Statement, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland law.
(l) As of the first Settlement DateProspectus, the Manager shall have received a copy Prospectus Supplement or any amendment or supplement to any of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Companythem).
Appears in 1 contract
Samples: Equity Distribution Agreement (Impac Mortgage Holdings Inc)
Conditions of Manager’s Obligations. The several obligations of the Manager Managers to purchase the Firm Shares hereunder are subject to the following conditions:
(ia) If, at the accuracy time this Agreement is executed and delivered, it is necessary for the Registration Statement or a post-effective amendment thereto to be declared effective before the offering of the representations and warranties of Shares may commence, the Company and the Operating Partnership Registration Statement or such post-effective amendment shall have become effective not later than 5:30 P.M. New York City time, on the date hereof, any Representation Dateor at such later date and time as shall be consented to in writing by you, any Time of Sale and as of any Settlement Dateall filings, (ii) if any, required by Rules 424 and 430A under the performance by the Company and the Operating Partnership of their respective obligations hereunder and (iii) to the following additional conditions precedent.
(i) No Act shall have been timely made; no stop order with respect to suspending the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has proceeding for that purpose shall have been issued by the Commissioninstituted or, and no suspension of the qualification of the Shares for offer or sale in any jurisdiction, or to the knowledge of the Company or any Manager, threatened by the Manager Commission, and any request of the initiation Commission for additional information (to be included in the Registration Statement or threatening the Prospectuses or otherwise) shall have been complied with to your satisfaction.
(b) Subsequent to the effective date of this Agreement, there shall not have occurred (i) any change, or any development involving a prospective change, that would have a Material Adverse Effect on the Company and the Subsidiaries, taken as a whole, not contemplated by the Prospectuses, which in writing your opinion, as Lead Managers of any proceedings the several Managers, would materially, adversely affect the market for any of such purposesthe Shares, has occurred; or (ii) any event or development relating to or involving the Registration Statement and all amendments thereto shall not contain an untrue Company or any officer or director of the Company or any Selling Stockholder which makes any statement of a material fact made in the Prospectuses untrue or omit which, in the opinion of the Company and its counsel or the Managers and their counsel, requires the making of any addition to or change in the Prospectuses in order to state a material fact required by the Act or any other law to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Basic Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements thereinof material fact therein not misleading, if amending or supplementing the Prospectuses to reflect such event or development would, in the light your opinion, as Lead Managers of the circumstances under which they are madeseveral Managers, not misleading; materially adversely affect the market for the Shares.
(ivc) no ProspectusYou shall have received on the Closing Date an opinion of Xxxxxxxx & Xxxxx, together with any combination of one or more counsel for the Company and the Selling Stockholders, dated the Closing Date and addressed to you, as Lead Managers of the Permitted Free Writing Prospectusesseveral Managers, if anyin substantially the form of Exhibit A hereto.
(d) You shall have received on the Closing Date an opinion of Xxxxxx & Xxxxxxx, counsel for the Managers, dated the Closing Date, with respect to the Registration Statement and the Prospectuses and such other related matters as you may reasonably request.
(e) You shall have received a letter addressed to you, as Lead Managers of the several Managers, and no amendment or supplement theretodated the date hereof and the Closing Date from Price Waterhouse LLP, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements thereinindependent certified public accountants, substantially in the light of the circumstances under which they are made, not misleading; (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleadingforms heretofore approved by you.
(i) None No stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been taken or, to the knowledge of the Company, shall be contemplated by the Operating Partnership Commission at or prior to the Closing Date; (ii) there shall not have been any of their respective subsidiaries shall have sustained since material change in the date capital stock of the latest audited financial statements included Company nor any material increase in the Prospectus any loss short-term or interference with its business or long-term debt of the Properties Company (other than in the ordinary course of business) from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as that set forth or contemplated in the ProspectusRegistration Statement or the Prospectuses (or any amendment or supplement thereto); (iii) there shall not have been, and (ii) since the respective dates as of which information is given in the ProspectusRegistration Statement and the Prospectuses (or any amendment or supplement thereto), there shall not have been any change except as may otherwise be stated in the capital stock of the Company or OP Units or Series A Preferred Units of the Operating Partnership or long-term debt of the Company, the Operating Partnership Registration Statement and Prospectuses (or any of their respective subsidiaries amendment or supplement thereto), any material adverse change, or any development involving a prospective material adverse change, in or affecting the general affairs, management, financial position, stockholders’ ' equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the Prospectus.
(c) On every date specified in Section 4(p) hereof, the Manager shall have received an opinion of Company Counsel, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 hereto, dated such date.
(d) On every date specified in Section 4(q) hereof, the Manager shall have received an opinion of Maryland Counsel, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On every date specified in Section 4(s) hereof, the Manager shall have received from KPMG LLP, or other independent accountants reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, a Comfort Letter, dated as of such date.
(f) On every date specified in Section 4(o) hereof, the Manager shall have received a certificate executed on behalf of the Company, for itself and in its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer to the effect that Subsidiaries taken as a whole; and (iiv) all the representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects 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 (except to the extent they expressly relate to an earlier date), and you shall have received a certificate, dated the Closing Date and signed by the chief executive officer and the Operating Partnership chief financial officer of the Company (or at the Company's option such other officers as are acceptable to you), to the effect set forth in this Section 2 are true 10(f) and correct as of the Representation Date, (iiin Section 10(g) the Company and the Operating Partnership have performed their respective obligations under this Agreement that they are required to perform on or prior to such Representation Date, (iii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there has not occurred any Material Adverse Effecthereof.
(g) On every date specified The Company shall not have failed in Section 4(r) hereof, the Manager shall have received an opinion of Xxxxxx, Xxxxx & Bockius LLP, counsel any material respect at or prior to the Manager, Closing Date to have performed or other counsel reasonably satisfactory complied with any of its agreements contained in this Agreement or the U.S. Underwriting Agreement and required to be performed or complied with by it hereunder at or prior to the Manager, in form and substance reasonably satisfactory to the Manager, dated such dateClosing Date.
(h) All filings with the Commission required by Rule 424 representations and Rule 433 under warranties of the Act Selling Stockholders contained in this Agreement shall be true and correct in all material respects, 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 (except to have been filed by any Settlement Date the extent they expressly relate to an earlier date), and you shall have been made within received a certificate, dated the applicable time period prescribed for such filing Closing Date and signed by Rule 424 or on behalf of each Selling Stockholder to the effect set forth in this Section 10(h) and Rule 433in Section 10(i) hereof.
(i) The Shares Selling Stockholders shall not have been approved for listing on the NYSE, subject only to notice of issuance failed in any material respect at or prior to the first Settlement Closing Date to have performed or complied with any of their agreements contained in this Agreement or the U.S. Underwriting Agreement and required to be performed or complied with by them at or prior to the Closing Date.
(j) The Manager Sellers shall have received from the Company all due diligence materials furnished or caused to be furnished to you such further certificates and information documents as you shall have reasonably requested by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligationsrequested.
(k) As of the first Settlement Date, the Articles of Supplementary The Common Stock shall have been accepted listed or approved for record by listing subject to notice of issuance, on the SDAT and shall be effective under Maryland lawNew York Stock Exchange.
(l) As The closing of the first Settlement Reclassification and the Stock Split (as defined in the Prospectuses) as described in the Prospectuses shall have occurred.
(m) The closing under the U.S. Underwriting Agreement shall have occurred concurrently with the closing hereunder on the Closing Date, unless such closing shall have failed to occur solely as a result of the failure to occur of the closing hereunder.
(n) The closing of the Acquisition of Falconite under the Stock Purchase Agreement shall have occurred concurrently with the closing hereunder on the Closing Date. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and substance to you and your counsel. Any certificate or document signed by any officer of the Company or any Selling Stockholder and delivered to you, as Lead Managers of the Managers, or to counsel for the Managers, shall be deemed a representation and warranty by the Company, the Selling Stockholders or the particular Selling Stockholder, as the case may be, to each Manager as to the statements made therein. The several obligations of the Managers to purchase Additional Shares hereunder are subject to the satisfaction on and as of any Option Closing Date of the conditions set forth in this Section 10, except that, if any Option Closing Date is other than the Closing Date, the Manager certificates, opinions and letters referred to in this Section 10 shall have received a copy be dated the Option Closing Date in question and the opinions or letters called for by paragraphs (c), (d) and (e) shall be revised to reflect the sale of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the CompanyAdditional Shares.
Appears in 1 contract
Samples: International Underwriting Agreement (National Equipment Services Inc)
Conditions of Manager’s Obligations. The obligations of the Manager hereunder are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any applicable Representation Date, any Time of Sale Date and as of any each Settlement Date, (ii) the performance by the Company and the Operating Partnership of their respective its obligations hereunder and (iii) to the following additional conditions precedent.
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares for offer offering or sale in any jurisdiction, or or, to the knowledge of the Company and the Operating Partnership or the Manager Manager, of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Basic Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None of the Company, the Operating Partnership or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since Subsequent to the respective dates as of which information is given in the Registration Statement, the Basic Prospectus, there shall not have been any change the Prospectus and the Permitted Free Writing Prospectuses, if any, no material and unfavorable change, financial or otherwise (other than as referred to in the capital stock Registration Statement and Prospectus), in the business, condition or prospects of the Company or OP Units or Series A Preferred Units and its Subsidiaries taken as a whole, in the judgment of the Operating Partnership Manager, shall occur or long-term debt become known and no transaction which is material and unfavorable to the Company (other than as referred to in the Registration Statement and Prospectus), in the judgment of the CompanyManager, shall have been entered into by the Operating Partnership Company or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the Prospectusits Subsidiaries.
(c) On every date specified in Section 4(p) hereof, the Manager The Company shall have received an opinion of Company Counsel, or other counsel reasonably satisfactory furnish to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 hereto, dated such date.
(d) On every date specified in Section 4(q) hereof, the Manager shall have received an opinion of Maryland Counsel, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On at every date specified in Section 4(s) hereofof this Agreement, opinion(s) of Company Counsel, addressed to the Manager, and dated as of such date, and in form and substance satisfactory to the Manager, in substantially the form set forth in Exhibit A hereto or as otherwise satisfactory to the Manager.
(d) At the dates specified in Section 4(w) of this Agreement, the Manager shall have received from KPMG LLP, or other independent the accountants reasonably letters dated the date of delivery thereof and addressed to the Manager in form and substance satisfactory to the Manager, in form and substance reasonably satisfactory .
(e) The Company shall deliver to the Manager, a Comfort Letter, dated as of such date.
(f) On at every date specified in Section 4(o4(r) hereofof this Agreement, the Manager shall have received a certificate executed on behalf of the Company, for itself and in two of its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer executive officers to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 each Distribution Agreement are true and correct as of the Representation Date, (ii) the Company and the Operating Partnership have has performed their respective all of its obligations under this each Distribution Agreement that they as are required to perform on be performed at or prior to before such Representation Date, and (iii) no stop order suspending the effectiveness conditions set forth in paragraphs (a) and (b) of Section 5 of each Distribution Agreement have been met. The certificate shall also state that the Shares have been duly and validly authorized by the Company, that all corporate action required to be taken for the issuance and sale of the Registration Statement Shares has been validly and sufficiently taken, and that the Company’s Board of Directors or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there other body with authority has not occurred any Material Adverse Effectrevoked, rescinded or otherwise modified or withdrawn such authorization or corporate action.
(gf) On The Manager shall have received, at every date specified in Section 4(r4(v) hereofof this Agreement, the Manager shall have received an opinion of XxxxxxSkadden, Xxxxx Arps, Slate, Xxxxxxx & Bockius Xxxx LLP, counsel to the Manager, or other counsel reasonably dated as of such date, and in form and substance satisfactory to the Manager.
(g) The Company shall furnish to the Manager, at every date specified in Section 4(t) of this Agreement, an opinion of Tax Counsel, addressed to the Manager, and dated as of such date, and in form and substance satisfactory to the Manager, in substantially the form and substance reasonably set forth in Exhibit B hereto or as otherwise satisfactory to the Manager, dated such date.
(h) The Manager shall have received, at every date specified in Section 4(u) of this Agreement, a certificate of the Secretary or Assistant Secretary of the Company, dated as of such date, in form and substance satisfactory to the Manager but modified to relate to the Registration Statement and the Prospectus, in each case, as amended and supplemented to the date of such certificate.
(i) At every date specified in Section 4(x) of this Agreement, the Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request.
(j) All filings related to the offering of the Shares with the Commission required by Rule 424 and or Rule 433 under the Act to have been filed by any Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)) and Rule 433, respectively.
(ik) The Shares shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement Date.
(j) The Manager shall have received from the Company all due diligence materials and information reasonably requested by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligations.
(k) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland law.
(l) As of the first Settlement Date, the Manager shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
Appears in 1 contract
Samples: Equity Distribution Agreement (Medical Properties Trust Inc)
Conditions of Manager’s Obligations. The obligations of the each Manager hereunder are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any applicable Representation Date, any as of each Time of Sale and as of any each Settlement Date, (ii) the performance by the Company and the Operating Partnership of their respective its obligations hereunder and (iii) to the following additional conditions precedent.:
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares Units for offer offering or sale in any jurisdiction, or to the knowledge of the Company Partnership or the Manager Managers of the initiation or threatening in writing of any proceedings for any of such purposes, has 28 occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iii) none of the Basic Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None of the Company, the Operating Partnership or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since Subsequent to the respective dates as of which information is given in the Registration Statement, the Basic Prospectus and the Prospectus, there no material and unfavorable change, financial or otherwise (other than as referred to in the Registration Statement and Prospectus), in the business, condition or prospects of the Partnership and its Subsidiaries taken as a whole, in the judgment of the Managers, shall not have occurred or become known and no transaction which is material and unfavorable to the Partnership (other than as referred to in the Registration Statement and Prospectus) in the judgment of the Managers, shall have been any change in entered into by the capital stock of the Company or OP Units or Series A Preferred Units of the Operating Partnership or long-term debt of the Company, the Operating Partnership or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the Prospectusits Subsidiaries.
(c) On every date specified in Section 4(p) hereof, the Manager The Partnership shall have received an opinion of Company Counsel, or other counsel reasonably satisfactory furnished to the ManagerManagers, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 hereto, dated such date.
(d) On at every date specified in Section 4(q) hereofof this Agreement, the Manager shall have received an opinion of Maryland Partnership Counsel, or other counsel reasonably addressed to the Managers, and dated as of such date, and in form satisfactory to the ManagerManagers, in the form reasonably set forth in Exhibit A hereto.
(d) The Partnership shall have furnished to the Managers, at every date specified in Section 4(q) of this Agreement, an opinion of Xxxxxx X. Xxxxx, Vice President, General Counsel and Secretary of ETP LLC, addressed to the Managers, and dated as of such date, and in form satisfactory to the ManagerManagers, with respect to in the matters form set forth in Exhibit B hereto, dated such date.
(e) On every date At the dates specified in Section 4(s4(v) hereofof this Agreement, the Manager Managers shall have received from KPMG LLPthe Accountants, or and any other independent accountants reasonably satisfactory accountants, letters dated the date of delivery thereof and addressed to the Manager, Managers in form and substance reasonably satisfactory to the Manager, a Comfort Letter, dated as of such dateManagers.
(f) On The Partnership shall have delivered to the Managers, at every date Representation Date specified in Section 4(o4(q) hereofof this Agreement, the Manager shall have received a certificate executed on behalf of the Company, for itself and in its capacity as the general partner two of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer ETP LLC’s executive officers to the effect that that:
(i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 this Agreement are true and correct as of the Representation DateDate with the exception of the representations in Section 2(h), (i), (l) and (v), of which the representation in Section 2(h), (i), (l) and (v) shall be updated in certificates delivered pursuant to this Section 6(f) at subsequent Representation Dates as follows:
(A) The General Partner is the sole general partner of the Partnership with an approximate ____ % general partner interest in the Partnership as of the date hereof.
(B) As of the date hereof, the limited partners of the Partnership own ____________ Common Units, _____________ Class E Units and ________ Class F Units representing an approximate ____% limited partner interest in the Partnership, __________ Common Units of which are owned by ETE, _____ Class E Units of which are owned by Heritage Holdings, Inc., and _______ Class F Units of which are owned by Sunoco, Inc.
(C) As of the date hereof, the Partnership has no direct or indirect subsidiaries (as defined under the Act) other than the subsidiaries listed in Schedule A hereto (collectively, sometimes referred to herein as the “Subsidiaries”); other than the Subsidiaries, the Partnership does not own, directly or indirectly, any shares of stock or any other equity interests or long-term debt securities of any corporation, firm, partnership, joint venture, association or other entity; complete and correct copies of the formation and governing documents of each of the ETP Entities and all amendments thereto have been delivered to the Managers; and each of the ETP Entities is in compliance with the laws, orders, rules, regulations and directives issued or administered by such jurisdictions, except where the failure to be in compliance would not, individually or in the aggregate, have a Material Adverse Effect. Attached hereto as Schedule B is a listing of each of the Subsidiaries of the Partnership that is a "significant subsidiary" as defined in Rule 1-02 of Regulation S‑X as of the date hereof (collectively, the “Material Subsidiaries”).
(D) Xxxxx Xxxxxxxx LLP, who have audited the consolidated financial statements of the Partnership as of and for the years ended ________ , are independent registered public accountants as required by the Act and by the rules of the Public Company Accounting Oversight Board (the “PCAOB”); and (ii) _____, who have audited the consolidated financial statements of ____________ and its subsidiaries as of ____________, are independent registered public accountants as required by the Act and by the rules of the PCAOB.
(ii) the Company and the Operating Partnership have has performed their respective such of its obligations under this Agreement that they as are required to perform on be performed at or prior to before such Representation Date, and
(iii) no stop order suspending the effectiveness conditions set forth in paragraphs (a) and (b) of Section 6 have been met. The certificate shall also state that the Units have been duly and validly authorized by the Partnership, that all partnership action required to be taken for the issuance and sale of the Registration Statement Units has been validly and sufficiently taken, and that ETP LLC’s Board of Directors or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there other body with authority has not occurred any Material Adverse Effectrevoked, rescinded or otherwise modified or withdrawn such authorization or partnership action.
(g) On The Managers shall have received, at every date specified in Section 4(r4(u) hereofof this Agreement, the Manager shall have received an favorable opinion of Xxxxxx, Xxxxxxx Xxxxx & Bockius LLPXXX, counsel to the ManagerManagers, or other counsel reasonably satisfactory to the Managerdated as of such date, and in form and substance reasonably satisfactory to the Manager, dated such dateManagers.
(h) The Managers shall have received, at every date specified in Section 4(t) of this Agreement, a certificate of the Secretary of ETP LLC, dated as of such date, and in form and substance satisfactory to the Managers.
(i) All filings with the Commission required by Rule 424 and Rule 433 under the Act to have been filed by any Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 and (without reliance on Rule 433424(b)(8)).
(ij) The Shares Units shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement Date.
(jk) The Manager There shall not have received from been any decrease in the Company all due diligence materials and information reasonably requested by rating of any of the Manager Partnership’s or its counsel necessary for the Manager to satisfy its due diligence obligations.
Subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (kas such term is defined under Section 3(a)(62) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland lawExchange Act).
(l) As The Partnership shall have furnished to the Managers, at every date specified in Section 4(q) of this Agreement, such other documents and certificates as the Managers may reasonably request. If any of the first Settlement Dateconditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, the Manager shall have received a copy or if any of the Operating Partnership opinions and certificates mentioned above or elsewhere in this Agreement Amendment duly authorizedshall not be reasonably satisfactory in form and substance to any Managers and counsel for such Manager, executed this Agreement, as it relates to such Manager, and delivered all obligations of such Manager hereunder may be canceled at, or at any time prior to, any Settlement Date by the Companysuch Manager.
Appears in 1 contract
Samples: Equity Distribution Agreement (Energy Transfer Partners, L.P.)
Conditions of Manager’s Obligations. The obligations of the Manager hereunder are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership FIDAC on the date hereof, any Representation Date, any Time applicable date referred to in Section 5(q) of Sale this Agreement and as of any each Settlement Date, (ii) the performance by the Company and the Operating Partnership FIDAC of their respective its obligations hereunder and (iii) to the following additional conditions precedent.
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares for offer offering or sale in any jurisdiction, or to the knowledge of the Company or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Basic Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None of the Company, the Operating Partnership or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since Subsequent to the respective dates as of which information is given in the Registration Statement, the Basic Prospectus, there shall not have been any change the Prospectus and the Permitted Free Writing Prospectuses, if any, no material and unfavorable change, financial or otherwise (other than as referred to in the capital stock Registration Statement and Prospectus), in the business, condition or prospects of the Company or OP Units or Series A Preferred Units and its Subsidiaries taken as a whole, in the judgment of the Operating Partnership Manager, shall occur or long-term debt become known and no transaction which is material and unfavorable to the Company (other than as referred to in the Registration Statement and Prospectus) in the judgment of the CompanyManager, shall have been entered into by the Operating Partnership Company or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the Prospectusits Subsidiaries.
(c) On The Company shall furnish to the Manager, at every date specified in Section 4(p5(r) hereofof this Agreement, the Manager shall have received an opinion of Company Counsel, or other counsel reasonably addressed to the Manager, and dated as of such date, and in form satisfactory to the Manager, in the form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 A hereto, dated such date.
(d) On every date At the dates specified in Section 4(q5(u) hereof, the Manager shall have received an opinion of Maryland Counsel, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On every date specified in Section 4(s) hereofthis Agreement, the Manager shall have received from KPMG LLP, or other independent accountants reasonably the Accountants letters dated the date of delivery thereof and addressed to the Manager in form and substance satisfactory to the Manager, in form and substance reasonably satisfactory .
(e) The Company shall deliver to the Manager, a Comfort Letter, dated as of such date.
(f) On every date on or prior to four days after each Representation Date specified in Section 4(o5(q) hereofof this Agreement, the Manager shall have received a certificate executed on behalf of the Company, for itself and in two of its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer executive officers to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 this Agreement are true and correct as of the Representation Datesuch delivery date, (ii) the Company and the Operating Partnership have has performed their respective such of its obligations under this Agreement that they as are required to perform on be performed at or prior to before each such Representation Datedelivery date, and (iii) no stop order suspending the effectiveness conditions set forth in paragraphs (a) and (b) of Section 8 have been met. The certificate shall also state that the Shares have been duly and validly authorized by the Company, that all corporate action required to be taken for the issuance and sale of the Registration Statement Shares has been validly and sufficiently taken, and that the Company’s Board of Directors or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there other body with authority has not occurred any Material Adverse Effectrevoked, rescinded or otherwise modified or withdrawn such authorization or corporate action.
(gf) On The Manager shall have received, at every date specified in Section 4(r5(t) hereofof this Agreement, the Manager shall have received an favorable opinion of XxxxxxFried, Xxxxx Frank, Harris, Xxxxxxx & Bockius Xxxxxxxx LLP, counsel to the Manager, or other counsel reasonably dated as of such date, and in form and substance satisfactory to the Manager.
(g) The Manager shall have received, at every date specified in Section 5(s) of this Agreement, a certificate of the Secretary of the Company, dated as of such date, and in form and substance reasonably satisfactory to the Manager, dated such date.
(h) All filings with the Commission required by Rule 424 and Rule 433 under the Act to have been filed by any the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 and Rule 433424.
(i) The Shares shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement Date.
(j) The Manager FIDAC shall have received from deliver to the Company all due diligence materials Manager, on or prior to four days after each Representation Date specified in Section 6(b) of this Agreement, a certificate of two of its executive officers to the effect that (i) the representations and information reasonably requested by the Manager warranties of FIDAC as set forth in this Agreement are true and correct as of such delivery date and (ii) FIDAC has performed such of its obligations under this Agreement as are to be performed at or its counsel necessary for the Manager to satisfy its due diligence obligationsbefore each such delivery date.
(k) As FIDAC shall furnish to the Manager, at every date specified in Section 6(c) of this Agreement, an opinion of Company Counsel, addressed to the first Settlement DateManager, and dated as of such date, and in form satisfactory to the Articles of Supplementary shall have been accepted for record by Manager, in the SDAT and shall be effective under Maryland lawform set forth in Exhibit A hereto.
(l) As of the first Settlement Date, the The Manager shall have received received, at every date specified in Section 6(d) of this Agreement, a copy certificate of the Operating Partnership Agreement Amendment duly authorizedSecretary of FIDAC, executed dated as of such date, and delivered by in form and substance satisfactory to the CompanyManager.
Appears in 1 contract
Samples: Equity Distribution Agreement (Chimera Investment Corp)
Conditions of Manager’s Obligations. The obligations of the Manager hereunder are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any Representation Date, any Time applicable date referred to in Section 4(q) of Sale this Agreement and as of any each Settlement Date, (ii) the performance by the Company and the Operating Partnership of their respective its obligations hereunder and (iii) to the following additional conditions precedent.
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares for offer offering or sale in any jurisdiction, or to the knowledge of the Company or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Basic Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None of the Company, the Operating Partnership or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since Subsequent to the respective dates as of which information is given in the Registration Statement, the Basic Prospectus, there shall not have been any change the Prospectus and the Permitted Free Writing Prospectuses, if any, no material and unfavorable change, financial or otherwise (other than as referred to in the capital stock Registration Statement and Prospectus), in the business, condition or prospects of the Company or OP Units or Series A Preferred Units and each of its Subsidiaries taken as a whole, in the judgment of the Operating Partnership Manager, shall occur or long-term debt become known and no transaction which is material and unfavorable to the Company (other than as referred to in the Registration Statement and Prospectus) in the judgment of the CompanyManager, shall have been entered into by the Operating Partnership Company or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the Prospectusits Subsidiaries.
(c) On The Company shall furnish to the Manager, at every date specified in Section 4(p4(r) hereofof this Agreement, the Manager shall have received an opinion of Company CounselXxxxxx & Xxxxxx LLP, or other Xxxxxxxx Islands counsel reasonably to the Company, addressed to the Manager, and dated as of such date, and in form satisfactory to the Manager, in the form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 A hereto, dated such date.
(d) On The Company shall furnish to the Manager, at every date specified in Section 4(q4(r) hereofof this Agreement, the Manager shall have received an opinion of Maryland CounselXxxxxx & Xxxxxx LLP, or other United States counsel reasonably to the Company, addressed to the Manager, and dated as of such date, and in form satisfactory to the Manager, in the form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On The Company shall furnish to the Manager, at every date specified in Section 4(s4(r) hereofof this Agreement, an opinion of Xxxxxx & Xxxxxx LLP, special Liberian counsel to the Company, addressed to the Manager, and dated as of such date, and in form satisfactory to the Manager, in the form set forth in Exhibit C hereto.
(f) At the dates specified in Section 4(y) of this Agreement, the Manager shall have received from KPMG LLP, or other independent accountants reasonably the Accountants letters dated the date of delivery thereof and addressed to the Manager in form and substance satisfactory to the Manager, in form and substance reasonably satisfactory .
(g) The Company shall deliver to the Manager, a Comfort Letter, dated as of such date.
(f) On at every date Representation Date specified in Section 4(o4(q) hereofof this Agreement, the Manager shall have received a certificate executed on behalf of the Company, for itself and in two of its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer executive officers to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 this Agreement are true and correct as of the Representation Date, (ii) the Company and the Operating Partnership have has performed their respective such of its obligations under this Agreement that they as are required to perform on be performed at or prior to before each such Representation Date, and (iii) no stop order suspending the effectiveness conditions set forth in paragraphs (a) and (b) of Section 6 have been met. The certificate shall also state that the Shares have been duly and validly authorized by the Company, that all corporate action required to be taken for the issuance and sale of the Registration Statement Shares has been validly and sufficiently taken, and that the Company’s Board of Directors or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there other body with authority has not occurred any Material Adverse Effectrevoked, rescinded or otherwise modified or withdrawn such authorization or corporate action.
(gh) On The Manager shall have received, at every date specified in Section 4(r4(x) hereofof this Agreement, the Manager shall have received an favorable opinion of Xxxxxx, Xxxxx Xxxxxxx Xxxxxxx & Bockius Xxxxxxxx LLP, counsel to the Manager, or other counsel reasonably dated as of such date, and in form and substance satisfactory to the Manager.
(i) The Manager shall have received, at every date specified in Section 4(w) of this Agreement, a certificate of the Secretary of the Company, dated as of such date, and in form and substance reasonably satisfactory to the Manager, dated such date.
(hj) All filings with the Commission required by Rule 424 and Rule 433 under the Act to have been filed by any the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 and Rule 433424.
(ik) The Shares shall have been approved for listing on the NYSENASDAQ, subject only to notice of issuance at or prior to the first Settlement Date.
(j) The Manager shall have received from the Company all due diligence materials and information reasonably requested by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligations.
(k) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland law.
(l) As of the first Settlement Date, the Manager shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
Appears in 1 contract
Samples: Equity Distribution Agreement (Eagle Bulk Shipping Inc.)
Conditions of Manager’s Obligations. The obligations of the each Manager hereunder with respect to any order submitted by the Company to such Manager to sell Shares or any agreement by such Manager to purchase Shares as principal are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any Representation Dateapplicable date referred to in Section 4(n) of this Agreement, any Time of Sale and as of any each Settlement Date, (ii) the performance by the Company and the Operating Partnership of their respective its obligations hereunder and (iii) to the following additional conditions precedent.:
(i) No stop order with respect to suspending the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has under the Securities Act shall have been issued and no proceedings for such purpose, or pursuant to Section 8A of the Securities Act, shall be pending before or threatened by the Commission, Commission and no suspension any requests for additional information on the part of the qualification of Commission (to be included in the Shares for offer Registration Statement or sale in any jurisdiction, the Prospectus or otherwise) shall have been complied with to the knowledge of the Company or the Manager of the initiation or threatening in writing of any proceedings for any reasonable satisfaction of such purposes, has occurredManager; (ii) each part of the Registration Statement and all amendments thereto any amendment thereto, at the time it became effective, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iii) none of the Basic Prospectus or the Prospectus, and no amendment as amended or supplement theretosupplemented, shall include an not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are were made, not misleading.
(ib) None of the Company, the Operating Partnership or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since Since the respective dates as of which information is given in the Prospectus, there shall not have been any change in the capital stock of the Company or OP Units or Series A Preferred Units of the Operating Partnership or long-term debt of the Company, the Operating Partnership or any of their respective subsidiaries or any material adverse change, or any development involving a prospective material adverse change, in the condition (financial or affecting the general affairsotherwise), management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations operations, properties or business of the CompanyCompany and its subsidiaries taken as a whole, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise other than as set forth in or contemplated in by the Prospectus, the effect of which, in any such case described in clause (i) is, individually or (ii), is in the aggregate, in the judgment of such Manager’s judgment , so material and adverse as to make it impracticable or inadvisable to proceed with consummate the offering sale and sale delivery of the Shares contemplated hereunder on the terms and in the manner as contemplated in the Prospectus.
(c) On every date specified in Section 4(p) hereofThe Company shall have furnished to such Manager, upon commencement of the offering of the Shares under this Agreement and at each Representation Date, the Manager shall have received an written opinion of Company Counsel, Company Internal Counsel and HGC Counsel, or in each case, other counsel reasonably satisfactory to the such Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 hereto, dated such date.
(d) On every date specified in Section 4(q) hereof, the Manager shall have received an opinion of Maryland Counsel, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On every date specified in Section 4(s) hereof, the Manager shall have received from KPMG LLP, or other independent accountants reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, a Comfort Letter, dated as of such date.
(f) On every date , as specified in Section 4(o).
(d) hereofAt the dates specified in Section 4(r) of this Agreement, the such Manager shall have received from the Company’s accountants and IMTT’s accountants the letters, dated as of such date, as specified in Section 4(r).
(e) The Company shall have delivered to such Manager, upon commencement of the offering of the Shares under this Agreement and at each Representation Date, a certificate executed of its Chief Executive Officer and Chief Financial Officer, which shall certify to the best of their knowledge after reasonable investigation, on behalf of the Company, for itself and in its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 this Agreement are true and correct on and as of the such Representation Date, (ii) the Company and the Operating Partnership have has performed their respective such of its obligations under this Agreement that they as are required to perform on be performed at or prior to before such Representation Date, (iii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment to the Registration Statement shall be in effect, use of the Prospectus under the Securities Act has been issued and no proceedings for such purpose are pending before or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for since the period from respective dates as of which information is given in the Prospectus, there has been no material adverse change, nor any development involving a prospective material adverse change, in the condition (financial or otherwise), results of operations, properties or business of the Company and including its subsidiaries, taken as a whole, other than those set forth in or contemplated by the date Prospectus.
(f) Such Manager shall have received, upon commencement of the offering of the Shares under this Agreement through and including such at each Representation Date, there has not occurred any Material Adverse Effect.
(g) On every date specified in Section 4(r) hereof, the Manager shall have received an written opinion of Xxxxxx, Xxxxx Shearman & Bockius Sterling LLP, counsel to the Manager, or other counsel reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the such Manager, dated as of such date, as specified in Section 4(q).
(g) [Reserved]
(h) All filings with respect to the Commission Shares required by Rule 424 and Rule 433 under of the Act Rules to have been filed with the Commission by any the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 and Rule 433424.
(i) The Shares shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement Date.
(j) The Manager shall have received from the Company all due diligence materials and information reasonably requested by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligations.
(k) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland law.
(l) As of the first Settlement Date, the Manager shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
Appears in 1 contract
Samples: Equity Distribution Agreement (Macquarie Infrastructure Corp)
Conditions of Manager’s Obligations. The obligations of the Manager hereunder are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any Representation Date, any Time applicable date referred to in Section 4(n) of Sale this Agreement and as of any each Settlement Date, (ii) the performance by the Company and the Operating Partnership of their respective its obligations hereunder and (iii) to the following additional conditions precedent.
(i) No stop order with respect to suspending the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has under the Act shall have been issued and no proceedings for such purpose shall be pending before or threatened by the Commission, Commission and no suspension any requests for additional information on the part of the qualification Commission (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the reasonable satisfaction of the Shares for offer or sale in any jurisdiction, or to the knowledge of the Company or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurredManager; (ii) each part of the Registration Statement and all amendments thereto any amendment thereto, at the time it became effective, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iii) none of the Basic Prospectus or the Prospectus, and no amendment as amended or supplement theretosupplemented, shall include an not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are were made, not misleading; .
(i) The Partnership and its subsidiaries shall not have sustained since the date of the latest audited financial statements included in the Prospectus, any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree that could reasonably be expected to have a Material Adverse Effect, and (ii) since the respective dates as of which information is given in the Prospectus, there shall not have been any change, or any development involving a prospective change, in the limited liability company interests, partnership interests, capital stock or long-term debt of the Partnership or any of its subsidiaries that would constitute a material adverse change to the Partnership and its subsidiaries taken as a whole, or any material adverse change in the general affairs, management, financial position or results of operations of the Partnership and its subsidiaries taken as a whole, whether or not arising in the ordinary course of business, in the case of either clause (i) or this clause (ii), other than as set forth in or contemplated by the Prospectus, if in the judgment of the Manager any such change makes it impracticable or inadvisable to consummate the sale and delivery of the Units as contemplated in the Prospectus.
(c) The Partnership shall have furnished to the Manager, at every date specified in Section 4(n) of this Agreement, the written opinion of Partnership Counsel, or other counsel satisfactory to the Manager, dated as of such date, as specified in Section 4(o).
(d) At the dates specified in Section 4(r) of this Agreement, the Manager shall have received from the Partnership’s accountants the letters, dated as of such date, as specified in Section 4(r).
(e) The Partnership shall have delivered to the Manager, at every date specified in Section 4(n) of this Agreement (each, a “Certificate Date”), a certificate of an executive officer of MLP GP, which shall certify on behalf of the Partnership, to the best of his or her respective knowledge after reasonable investigation, that (i) the representations and warranties of the Partnership, as set forth in this Agreement are true and correct as of the Certificate Date, (ii) the Partnership has performed such of its obligations under this Agreement as are to be performed at or before each such Certificate Date, (iii) no stop order suspending the effectiveness of the Registration Statement or the use of the Prospectus under the Act has been issued and no proceedings for such purpose are pending before or threatened by the Commission, (iv) no each part of the Registration Statement and any amendment thereto, at the time it became effective, did not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (v) the Prospectus, together with as amended or supplemented, does not contain any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are were made, not misleading; (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(i) None of the Company, the Operating Partnership or any of their respective and its subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus Prospectus, any loss or interference with its business or the Properties from fire, explosion, flood or other calamity calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decreedecree that could reasonably be expected to have a Material Adverse Effect, otherwise other than as set forth in or contemplated in by the Prospectus, and (iivii) since the respective dates as of which information is given in the Prospectus, there shall has not have been any change in the capital stock of the Company or OP Units or Series A Preferred Units of the Operating Partnership or long-term debt of the Company, the Operating Partnership or any of their respective subsidiaries or any change, or any development involving a prospective change, in the limited liability company interests, partnership interests, capital stock or affecting long-term debt of the Partnership or any of its subsidiaries that would constitute a material adverse change to the Partnership and its subsidiaries taken as a whole, or any material adverse change in the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, position or results of operations of the CompanyPartnership and its subsidiaries taken as a whole, whether or not arising in the Operating Partnership or their respective subsidiariesordinary course of business, considered as one enterprise, otherwise other than as set forth in or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in by the Prospectus.
(cf) On The Manager shall have received, at every date specified in Section 4(p4(n) hereofof this Agreement, the Manager shall have received an written opinion of Company CounselXxxxxx & Xxxxxx L.L.P., or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 hereto, dated such date.
(d) On every date specified in Section 4(q) hereof, the Manager shall have received an opinion of Maryland Counsel, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On every date specified in Section 4(s) hereof, the Manager shall have received from KPMG LLP, or other independent accountants reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, a Comfort Letter, dated as of such date, as specified in Section 4(q).
(fg) On The Manager shall have received, at every date specified in Section 4(o4(n) hereofof this Agreement, the Manager shall have received a certificate executed of the Secretary or Assistant Secretary of MLP GP on behalf of the Company, for itself and in its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 are true and correct dated as of the Representation Datesuch date, (ii) the Company and the Operating Partnership have performed their respective obligations under this Agreement that they are required to perform on or prior to such Representation Date, (iii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there has not occurred any Material Adverse Effect.
(g) On every date as specified in Section 4(r) hereof, the Manager shall have received an opinion of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Manager, or other counsel reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, dated such date4(p).
(h) All filings with respect to the Commission Units required by Rule 424 and Rule 433 under of the Act Rules to have been filed with the Commission by any the Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 and Rule 433424.
(i) The Shares Units shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement Date.
(j) The Manager shall have received from the Company all due diligence materials and information reasonably requested by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligations.
(k) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland law.
(l) As of the first Settlement Date, the Manager shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
Appears in 1 contract
Samples: Equity Distribution Agreement (El Paso Pipeline Partners, L.P.)
Conditions of Manager’s Obligations. The obligations of the Manager hereunder are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any applicable Representation Date, any Time of Sale Date and as of any each Settlement Date, (ii) the performance by the Company and the Operating Partnership of their respective its obligations hereunder and (iii) to the following additional conditions precedent.:
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares Units for offer offering or sale in any jurisdiction, or to the knowledge of the Company Partnership or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Basic Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, Prospectus and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None of the Company, the Operating Partnership or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since Subsequent to the respective dates as of which information is given in the Registration Statement, the Basic Prospectus and the Prospectus, there no material and unfavorable change, financial or otherwise (other than as referred to in the Registration Statement and Prospectus), in the business, condition or prospects of the Partnership and its Subsidiaries taken as a whole, in the judgment of the Manager, shall not have occurred or become known and no transaction which is material and unfavorable to the Partnership (other than as referred to in the Registration Statement and Prospectus) in the judgment of the Manager, shall have been any change in entered into by the capital stock of the Company or OP Units or Series A Preferred Units of the Operating Partnership or long-term debt of the Company, the Operating Partnership or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the Prospectusits Subsidiaries.
(c) On every date specified in Section 4(p) hereof, the Manager The Partnership shall have received an opinion of Company Counsel, or other counsel reasonably satisfactory furnished to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 hereto, dated such date.
(d) On at every date specified in Section 4(q) hereofof this Agreement, the Manager shall have received an opinion of Maryland Partnership Counsel, or other counsel reasonably addressed to the Manager, and dated as of such date, and in form satisfactory to the Manager, in the form reasonably set forth in Exhibit A hereto.
(d) The Partnership shall have furnished to the Manager, at every date specified in Section 4(q) of this Agreement, an opinion of Xxxxxx X. Xxxxx, Vice President, General Counsel and Secretary of ETP LLC, addressed to the Manager, and dated as of such date, and in form satisfactory to the Manager, with respect to in the matters form set forth in Exhibit B hereto, dated such date.
(e) On every date At the dates specified in Section 4(s4(v) hereofof this Agreement, the Manager shall have received from KPMG LLP, or other independent accountants reasonably the Accountants letters dated the date of delivery thereof and addressed to the Manager in form and substance satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, a Comfort Letter, dated as of such date.
(f) On The Partnership shall have delivered to the Manager, at every date Representation Date specified in Section 4(o4(q) hereofof this Agreement, the Manager shall have received a certificate executed on behalf of the Company, for itself and in its capacity as the general partner two of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer ETP LLC’s executive officers to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 this Agreement are true and correct as of the Representation Date, (ii) the Company and the Operating Partnership have has performed their respective such of its obligations under this Agreement that they as are required to perform on be performed at or prior to before such Representation Date, and (iii) no stop order suspending the effectiveness conditions set forth in paragraphs (a) and (b) of Section 6 have been met. The certificate shall also state that the Units have been duly and validly authorized by the Partnership, that all partnership action required to be taken for the issuance and sale of the Registration Statement Units has been validly and sufficiently taken, and that ETP LLC’s Board of Directors or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there other body with authority has not occurred any Material Adverse Effectrevoked, rescinded or otherwise modified or withdrawn such authorization or partnership action.
(g) On The Manager shall have received, at every date specified in Section 4(r4(u) hereofof this Agreement, the Manager shall have received an favorable opinion of Xxxxxx, Xxxxxxx Xxxxx & Bockius LLP, counsel to the Manager, or other counsel reasonably dated as of such date, and in form and substance satisfactory to the Manager.
(h) The Manager shall have received, at every date specified in Section 4(t) of this Agreement, a certificate of the Secretary of ETP LLC, dated as of such date, and in form and substance reasonably satisfactory to the Manager, dated such date.
(hi) All filings with the Commission required by Rule 424 and Rule 433 under the Act to have been filed by any Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 and (without reliance on Rule 433424(b)(8)).
(ij) The Shares Units shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement Date.
(j) The Manager shall have received from the Company all due diligence materials and information reasonably requested by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligations.
(k) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland law.
(l) As of the first Settlement Date, the Manager shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
Appears in 1 contract
Samples: Equity Distribution Agreement (Energy Transfer Partners, L.P.)
Conditions of Manager’s Obligations. The obligations of the Manager hereunder are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any Representation applicable date referred to in Section 3(l), each Filing Date, any each Applicable Time of Sale and as of any each Settlement Date, (ii) the performance by the Company and the Operating Partnership of their respective its obligations hereunder and (iii) to the following additional conditions precedent.:
(i) No stop order with respect to the effectiveness of any one of the Registration Statement shall have been issued under the 1933 Act or the 1933 Act Regulations or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, 0000 Xxx and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares for offer offering or sale in any jurisdiction, or to the knowledge of the Company or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto thereto, or modifications thereof, if any, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Basic Prospectus and all amendments or the Prospectussupplements thereto, or modifications thereof, if any, and no amendment or supplement thereto, the General Disclosure Package shall include not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; , (iv) no the Company shall have filed the Prospectus, together and any amendments and supplements thereto, with any combination of one or more of the Permitted Free Writing Prospectuses, if anyCommission (including the information required by Rule 430B) in the manner and within the time period required by the 1933 Act and the 1933 Act Regulations, and no any post-effective amendment or supplement theretothereto containing the information required by Rule 430B shall have become effective, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (v) no General Disclosure Package, and no amendment or supplement thereto, all material required to be filed by the Company pursuant to Rule 433(d) shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make have been filed with the statements therein, in Commission within the light of the circumstances applicable time periods prescribed for such filings under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleadingRule 433.
(b) In the judgment of the Manager, there shall not have occurred any Material Adverse Effect.
(c) The Company shall furnish or cause to be furnished to the Manager, (i) None upon commencement of the Companyoffering of Shares under this Agreement, (ii) on every date specified in Section 3(m) hereof and (iii) to the extent requested by the Manager in connection with any offering of the Shares, on each Monday during the term of this Agreement that is the second Monday falling after the date that the opinion and negative assurance letter required by this paragraph shall last have been provided, the Operating Partnership or any opinion and negative assurance letter of their respective subsidiaries shall have sustained Ropes & Xxxx LLP addressed to the Manager, dated as of such date, in form satisfactory to the Manager and its counsel, substantially in the form of Exhibit B-1 and Exhibit B-2 attached hereto; provided that if since the date of the latest audited financial statements included last opinion and negative assurance letter so furnished Shares in the Prospectus any loss an amount equal to or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since the respective dates as excess of which information is given in the Prospectus, there shall not have been any change in the capital stock of the Company or OP Units or Series A Preferred Units of the Operating Partnership or long-term debt one percent of the Company’s outstanding shares of Common Stock as shown in the Company’s most recent audited or interim financial statement (the “Subsequent Delivery Threshold”) shall have been sold through the Manager, the Operating Partnership or any of their respective subsidiaries or any changeCompany shall, or any development involving a prospective change, in or affecting upon the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations request of the CompanyManager in connection with any offering of the Shares, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of whichforthwith (and, in any such case described in clause (i) or (ii)event, is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the Prospectus.
(c) On every date specified in Section 4(p) hereof, within 2 business days after the Manager shall have received an opinion of Company Counsel, so requested) furnish or other counsel reasonably satisfactory cause to be furnished to the Manager, Manager the opinion and negative assurance letter required by this Section 4(c); provided further that the Company shall not be required to furnish or cause to be furnished the opinion in the form reasonably satisfactory to of Exhibit B-1 hereto other than on the Manager, with respect to commencement of the matters set forth offering and other than on the dates specified in Exhibit A-1 and Exhibit A-2 hereto, dated such dateSection 3(m).
(d) On every date Upon (i) commencement of the offering of Shares under this Agreement, (ii) each of the dates specified in Section 4(q3(n) hereof, and (iii) to the extent requested by the Manager in connection with any offering of the Shares, each Monday during the term of this Agreement that is the fourth Monday falling after the date that the letter required by this paragraph shall last have received an opinion of Maryland Counsel, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On every date specified in Section 4(s) hereofbeen provided, the Manager shall have received from KPMG LLP, or other independent accountants reasonably satisfactory PricewaterhouseCoopers LLP letters dated the date of delivery thereof and addressed to the Manager, Manager in form and substance reasonably satisfactory to the Manager and its counsel; provided that if since the date of the last opinion so furnished Shares in an amount equal to or in excess of the Subsequent Delivery Threshold shall have been sold through the Manager, a Comfort Letterthe Company shall, dated as upon the request of such datethe Manager in connection with any offering of the Shares, forthwith (and, in any event, within 2 business days after the Manager shall have so requested) furnish or cause to be furnished to the Manager the letter required by this Section 4(d).
(fe) On every date Upon commencement of the offering of Shares under this Agreement, on each Monday during the term of this Agreement and at the dates specified in Section 4(o3(l) hereof, the Company will deliver to the Manager shall have received a certificate executed on behalf of the Company, for itself and in two of its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer executive officers to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 this Agreement are true and correct as of the Representation date of such certificate (the “Certificate Date”), (ii) the Company and the Operating Partnership have has performed their respective or shall perform such of its obligations under this Agreement that they as are required to perform on be performed at or prior to before each such Representation Certificate Date, and (iii) no stop order suspending the effectiveness conditions set forth in paragraphs (a) and (b) of this Section 4 have been met; provided that if since the date of the Registration Statement last certificate so furnished Shares having an aggregate offering price equal to or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A excess of the Act Subsequent Delivery Threshold shall have been instituted orsold through the Manager, the Company shall forthwith furnish or cause to be furnished to the knowledge Manager the certificate required by this Section 4(e) dated the first date as of which Shares shall have been sold in an amount equal to or in excess of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there has not occurred any Material Adverse EffectSubsequent Delivery Threshold.
(gf) On every the date specified in Section 4(r) hereof, the Manager shall have received an the opinion of Xxxxxx, Xxxxx & Bockius LLP, counsel Sidley Austin LLP dated the date hereof and addressed to the Manager, or other counsel reasonably Manager in form and substance satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, dated such date.
(hg) All filings with the Commission required by Rule 424 and Rule 433 under of the 1933 Act Regulations to have been filed by any each Applicable Time or related Settlement Date Date, as the case may be, shall have been made within the applicable time period prescribed for such filing by Rule 424 and (without reliance on Rule 433424(b)(8)).
(ih) The Settlement Shares shall have been approved for listing on the NYSE, subject only to official notice of issuance at or prior issuance.
(i) The Company shall have furnished to the first Manager such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement, the Prospectus and the General Disclosure Package as of each Settlement DateDate as the Manager may reasonably request.
(j) The Manager Company shall have received from paid the Company all due diligence materials required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the 1933 Act Regulations without regard to the proviso therein and information reasonably requested by otherwise in accordance with Rules 456(b) and 457(r) of the Manager 1933 Act Regulations and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or its counsel necessary for on the Manager cover page of a prospectus filed pursuant to satisfy its due diligence obligationsRule 424(b).
(k) As FINRA shall not have raised any objection with respect to the fairness and reasonableness of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT terms and shall be effective arrangements under Maryland lawthis Agreement.
(l) As No amendment or supplement to the Registration Statement or Prospectus, including documents deemed to be incorporated by reference therein, shall be filed to which the Manager objects in writing.
(m) Between the time of execution of this Agreement and the time of sale of Shares through the Manager, as the case may be, there shall not have occurred any downgrading, nor shall any notice or announcement have been given or made of (i) any intended or potential downgrading or (ii) any review or possible change that does not indicate an improvement, in the rating accorded any securities of or guaranteed by the Company by any “nationally recognized statistical rating organization,” as that term is defined in Rule 436(g)(2) of the first Settlement Date, the Manager shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company1933 Act Regulations.
Appears in 1 contract
Samples: Distribution Agency Agreement (Affiliated Managers Group Inc)
Conditions of Manager’s Obligations. The obligations of the Manager hereunder and under any Terms Agreement are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership Investment Adviser on the date hereof, on each date that the Registration Statement or the Prospectus is amended or supplemented (other than a Prospectus Supplement filed pursuant to Rules 497(c) or 497(h) under the Securities Act pursuant to Section 4(a) hereof or relating solely to the offering of securities other than the Shares), on the date of any Representation Date, any Time of Sale executed Terms Agreement and as of any each Settlement DateDate and Time of Delivery, (ii) the performance by the Company and the Operating Partnership Investment Adviser of their respective obligations hereunder hereunder, and (iii) to the following additional conditions precedent.:
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings initiated under Section 8A, Sections 8(d) or 8(e) of the Securities Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares for offer offering or sale in any jurisdiction, or to the knowledge of the Company Company, the Investment Adviser or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Basic Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (v) no General Disclosure Package, and no amendment or supplement thereto, shall include contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (viiv) none of the Permitted Free Writing Prospectuses, if any, Basic Prospectus or the Prospectus and no amendment or supplement thereto shall include contain an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None of the CompanyNo material and unfavorable change, the Operating Partnership financial or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included otherwise (other than as referred to in the Prospectus any loss or interference with its business or the Properties from fireRegistration Statement and Prospectus), explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectusbusiness, and (ii) since the respective dates as properties, management, financial condition, results of which information is given in the Prospectus, there shall not have been any change in the capital stock operations or prospects of the Company or OP Units the Investment Adviser shall occur or Series A Preferred Units of become known and no transaction which is material and unfavorable to the Operating Partnership Company or long-term debt of the Company, the Operating Partnership or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise Investment Adviser (other than as set forth or contemplated referred to in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material Registration Statement and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the Prospectus) shall have been entered into by the Company or the Investment Adviser.
(c) On The Company shall furnish to the Manager, at every date specified in Section 4(p5(p) hereof, the Manager shall have received an opinion of Company Counsel, or other counsel reasonably addressed to the Manager, and dated as of such date, and in form satisfactory to the Manager, in the form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 A hereto, dated such date.
(d) On The Company shall furnish to the Manager, at every date specified in Section 4(q5(q) hereof, the Manager shall have received an opinion of Maryland Adviser’s Counsel, or other counsel reasonably addressed to the Manager, and dated as of such date, and in form satisfactory to the Manager, in the form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On At every date specified in Section 4(s5(s) hereof, the Manager shall have received from KPMG LLP, or other independent accountants reasonably the accountants’ letters dated the date of delivery thereof and addressed to the Manager in form and substance satisfactory to the Manager, in form and substance reasonably satisfactory .
(i) The Company will deliver to the Manager, Manager a Comfort Letter, certificate (a) dated as of such date.
(f) On and delivered on every date specified in Section 4(o5(o) hereofhereof (each, the Manager shall have received a certificate executed on behalf “Certificate Date”), of the Company, for itself and in two of its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer senior executive officers to the effect that (i1) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 this Agreement are true and correct as of the Representation Certificate Date, (2) the Company shall perform all of its obligations under this Agreement as are required to be performed at or before each such Certificate Date and (3) the conditions set forth in paragraphs (a) and (b) of this Section 6 have been met; and (ii) the Company Investment Adviser will deliver to the Manager a certificate, dated as of each Certificate Date of two of its senior executive officers to the effect that (x) the representations and warranties of the Operating Partnership have performed their respective Investment Adviser as set forth in this Agreement are true and correct as of the Certificate Date, (y) the Investment Adviser shall perform all of its obligations under this Agreement that they as are required to perform on be performed at or prior to before each such Representation Certificate Date, and (iiiz) no stop order suspending the effectiveness conditions set forth in paragraphs (a) and (b) of the Registration Statement or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to this Section 8A of the Act shall 6 have been instituted ormet. In addition, on each Certificate Date, the certificate shall also state that the Shares to the knowledge of be sold on that date have been duly and validly authorized by the Company and the Operating Partnership, threatened by the Commission and (iv) that all corporate action required to be taken for the period from authorization, issuance and including sale of the Shares on that date of this Agreement through has been validly and including such Representation Date, there has not occurred any Material Adverse Effectsufficiently taken.
(g) On The Manager shall have received, at every date specified in Section 4(r5(r) hereof, the Manager shall have received an favorable opinion of Xxxxxx, Xxxxx & Bockius LLPManager’s Counsel, counsel to the Manager, or other counsel reasonably dated as of such date, and in form and substance satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, dated such date.
(h) All filings with the Commission required by Rule 424 and Rule 433 497(c) and/or 497(h) under the Securities Act to have been filed by any the Settlement Date or the Time of Delivery, as the case may be, shall have been made within the applicable time period prescribed for such filing by Rule 424 and Rule 433497(c) and/or 497(h) under the Securities Act.
(i) The Shares shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement DateDate or the Time of Delivery, as the case may be.
(j) The Manager shall have received from the Company all due diligence materials and information reasonably requested by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligations.
(k) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland law.
(l) As of the first Settlement Date, the Manager shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
Appears in 1 contract
Conditions of Manager’s Obligations. The obligations of the each Manager hereunder are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any Representation applicable Delivery Date, any as of each Time of Sale and as of any each Settlement Date, (ii) the performance by the Company and the Operating Partnership of their respective its obligations hereunder and (iii) to the following additional conditions precedent.:
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Securities Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares Units for offer offering or sale in any jurisdiction, or to the knowledge of the Company Partnership or the Manager Managers of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; misleading and (iii) none of the Basic Base Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None of the Company, the Operating Partnership or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since Subsequent to the respective dates as of which information is given in the Registration Statement, the Base Prospectus and the Prospectus, there no material and unfavorable change, financial or otherwise (other than as referred to in the Registration Statement and Prospectus), in the business, condition or prospects of the Partnership and its Subsidiaries taken as a whole, in the judgment of the Managers, shall not have occurred or become known and no transaction which is material and unfavorable to the Partnership (other than as referred to in the Registration Statement and Prospectus) in the judgment of the Managers, shall have been any change in entered into by the capital stock of the Company or OP Units or Series A Preferred Units of the Operating Partnership or long-term debt of the Company, the Operating Partnership or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the Prospectusits Subsidiaries.
(c) On every date specified in Section 4(p) hereof, the Manager The Partnership shall have received an opinion of Company Counsel, or other counsel reasonably satisfactory furnished to the ManagerManagers, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 hereto, dated such date.
(d) On at every date specified in Section 4(q) hereofof this Agreement, the Manager shall have received an opinion of Maryland Partnership Counsel, or other counsel reasonably addressed to the Managers, and dated as of such date, and in form satisfactory to the ManagerManagers, in the form reasonably set forth in Exhibit A hereto; provided, however, that in lieu of such opinions for Representation Dates subsequent to the commencement of the offering of the Units under this Agreement, counsel may furnish the Managers with a letter to the effect that the Managers may rely on a prior opinion delivered under Section 4(r) to the same extent as if it were dated the date of such letter (except that statements in such prior opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented at such Delivery Date).
(d) The Partnership shall have furnished to the Managers, at every date specified in Section 4(q) of this Agreement, an opinion of the General Counsel or any Associate General Counsel of ETP LLC, addressed to the Managers, and dated as of such date, and in form satisfactory to the ManagerManagers, with respect to in the matters form set forth in Exhibit B hereto; provided, however, that in lieu of such opinions for Representation Dates subsequent to the commencement of the offering of the Units under this Agreement, counsel may furnish the Managers with a letter to the effect that the Managers may rely on a prior opinion delivered under Section 4(s) to the same extent as if it were dated the date of such dateletter (except that statements in such prior opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented at such Delivery Date).
(e) On every date At the dates specified in Section 4(s4(v) hereofof this Agreement, the Manager Managers shall have received from KPMG LLPthe Accountant, one or other independent accountants reasonably more letters dated the date of delivery thereof and addressed to the Managers in form and substance satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, a Comfort Letter, dated as of such date.
(f) On The Partnership shall have delivered to the Managers, at every date Delivery Date specified in Section 4(o4(q) hereofof this Agreement, the Manager shall have received a certificate executed on behalf of two of the Company, for itself and in its capacity as the general partner executive officers of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer ETP LLC to the effect that that:
(i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 this Agreement are true and correct as of the Representation DateDelivery Date with the exception of the representations in Section 2(h) and (j), of which the representation in Section 2(h) and (j) shall be updated in certificates delivered pursuant to this Section 6(f)(i) at subsequent Delivery Dates as follows:
(1) The General Partner is the sole general partner of the Partnership and, as of the date hereof, owns an approximate % general partner interest in the Partnership (the “GP Interest”); such GP Interest has been duly authorized and validly issued in accordance with the Partnership Agreement, and the General Partner owns such general partner interest free and clear of all Liens.
(2) As of the date hereof, (i) the limited partners of the Partnership own (A) Common Units, (B) Class E Units, (C) Class G Units, (D) Class I Units, (E) Class J Units and (F) Class K Units, (ii) Common Units are owned by ETE, free and clear of all Liens except , (iii) Class E Units are owned by Heritage Holdings, Inc., free and clear of all Liens, (iv) Class G Units are owned by subsidiaries of Sunoco, Inc., free and clear of all Liens, (v) Class I Units are owned by ETE (or its subsidiaries), and (vi) Class J Units are owned by , and (vii) Class K Units are owned by certain indirect subsidiaries of the Partnership, free and clear of all Liens.
(3) ETE owns % of the issued and outstanding membership interests in ETP LLC; such membership interests have been duly authorized and validly issued in accordance with the ETP LLC limited liability company agreement and are fully paid (to the extent required under the ETP LLC limited liability company agreement) and non-assessable (except as such non-assessability may be affected by matters described in Section 18-607 of the Delaware Limited Liability Company Act); and ETE owns such membership interests free and clear of all Liens, other than Liens .
(4) (i) ETP LLC is the sole general partner of the General Partner, with a % general partner interest in the General Partner; (ii) such interest has been duly authorized and validly issued in accordance with the General Partner’s agreement of limited partnership; (iii) ETP LLC owns such general partner interest free and clear of all Liens; (iv) ETE owns % of the Class A limited partner interests of the General Partner and % of the Class B limited partner interests of the General Partner; (v) such limited partner interests have been duly authorized and validly issued in accordance with the General Partner’s agreement of limited partnership and are fully paid (to the extent required under the General Partner’s agreement of limited partnership) and non-assessable (except as such non-assessability may be affected by Sections 17-303(a), 17-607 and 17-804 of the Delaware LP Act and as otherwise described in the Registration Statement and the Operating Prospectus); and (vi) ETE owns such limited partner interests free and clear of all Liens, other than Liens .
(5) As of the date hereof, the Partnership has no direct or indirect subsidiaries (as defined under the Securities Act) other than the subsidiaries listed in Schedule A hereto (collectively, sometimes referred to herein as the “Subsidiaries”); other than the Subsidiaries, the Partnership does not own, directly or indirectly, any shares of stock or any other equity interests or long-term debt securities of any corporation, firm, partnership, joint venture, association or other entity (other than as set forth on Schedule B hereto); complete and correct copies of the formation and governing documents of each of the Partnership Entities and all amendments thereto have been delivered to the Managers; and each of the Partnership Entities is in compliance with the laws, orders, rules, regulations and directives issued or administered by such jurisdictions, except where the failure to be in compliance would not, individually or in the aggregate, have a Material Adverse Effect. Attached hereto as Schedule C is a listing of the Material Subsidiaries.
(ii) the Partnership has performed their respective such of its obligations under this Agreement that they as are required to perform on be performed at or prior to before such Representation Delivery Date, and
(iii) no stop order suspending the effectiveness conditions set forth in paragraphs (a) and (b) of Section 6 have been met. The certificate shall also state that the Units have been duly and validly authorized by the Partnership, that all partnership action required to be taken for the issuance and sale of the Registration Statement Units has been validly and sufficiently taken, and that ETP LLC’s Board of Directors or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there other body with authority has not occurred any Material Adverse Effectrevoked, rescinded or otherwise modified or withdrawn such authorization or partnership action.
(g) On The Managers shall have received, at every date specified in Section 4(r4(t) hereofof this Agreement, a certificate of the Secretary of ETP LLC, dated as of such date, and in form and substance satisfactory to the Managers.
(h) The Managers shall have received, at every date specified in Section 4(u) of this Agreement, the Manager shall have received an favorable opinion of Xxxxxx, Xxxxxxx Xxxxx & Bockius Xxxxxx LLP, counsel to the ManagerManagers, or other counsel reasonably satisfactory to the Managerdated as of such date, and in form and substance reasonably satisfactory to the ManagerManagers; provided, however, that in lieu of such opinions for Representation Dates subsequent to the commencement of the offering of the Units under this Agreement, counsel may furnish the Managers with a letter to the effect that the Managers may rely on a prior opinion delivered under Section 4(u) to the same extent as if it were dated the date of such dateletter (except that statements in such prior opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented at such Delivery Date).
(hi) All filings with the Commission required by Rule 424 and or Rule 433 under the Securities Act to have been filed by any Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)) and Rule 433, respectively.
(ij) The Shares Units shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement Date.
(jk) The Manager There shall not have received from been any decrease in the Company all due diligence materials and information reasonably requested by rating of any of the Manager Partnership’s or its counsel necessary for the Manager to satisfy its due diligence obligations.
Subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (kas such term is defined under Section 3(a)(62) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland lawExchange Act).
(l) As The Partnership shall have furnished to the Managers, at every date specified in Section 4(q) of this Agreement, such other documents and certificates as the Managers may reasonably request. If any of the first conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to any Manager and counsel for the Managers, this Agreement, as it relates to such Manager, and all obligations of such Manager hereunder may be canceled at, or at any time prior to, any Settlement DateDate by such Manager. Notice of such cancellation shall be given to the Partnership in writing or by telephone or facsimile confirmed in writing. Notwithstanding any other provision of this Agreement, the Manager Partnership shall have received not offer, sell or deliver, or request the offer or sale, of any Units pursuant to this Agreement following any Representation Date until the Partnership has provided the Managers with the opinions and letters of counsel, the secretary’s certificate, officers’ certificate and accountants’ letter specified in Sections 6(c), (d), (e), (f), and (g) hereof and afforded the Managers the opportunity to conduct a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Companydue diligence review in accordance with Section 4(w) hereof.
Appears in 1 contract
Samples: Equity Distribution Agreement (Energy Transfer Partners, L.P.)
Conditions of Manager’s Obligations. The obligations of the Manager hereunder are subject to (i) the accuracy of the representations and warranties of the Company and the Operating Partnership on the date hereof, any Representation Date, any Time of Sale and as of any Settlement Date, (ii) the performance by the Company and the Operating Partnership of their respective obligations hereunder and (iii) to the following additional conditions precedent.
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares for offer or sale in any jurisdiction, or to the knowledge of the Company or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Basic Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(i) None of the Company, the Operating Partnership or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since the respective dates as of which information is given in the Prospectus, there shall not have been any change in the capital stock of the Company or OP Units or Series A Preferred Units of the Operating Partnership or long-term debt of the Company, the Operating Partnership or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the Prospectus.
(c) On every date specified in Section 4(p4(q) hereof, the Manager shall have received an opinion of Company Counsel, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 A hereto, dated such date.
(d) On every date specified in Section 4(q) hereof, the Manager shall have received an opinion of Maryland Counsel, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On every date specified in Section 4(s) hereof, the Manager shall have received from KPMG Ernst & Young LLP, or other independent accountants reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, a Comfort Letter, dated as of such date.
(fe) On every date specified in Section 4(o4(p) hereof, the Manager shall have received a certificate executed on behalf of the Company, for itself Company and in its capacity as the general partner of the Operating Partnership, Partnership by its (or its general partner’s) Chief Executive Officer, President and President, any Executive Vice President or General Counsel and the Chief Financial Officer to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 are true and correct as of the Representation Date, (ii) the Company and the Operating Partnership have performed their respective obligations under this Agreement that they are required to perform on or prior to such Representation Date, (iii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, or threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there has not occurred any Material Adverse Effect.
(gf) On every date specified in Section 4(r) hereof, the Manager shall have received an opinion of Xxxxxx, Xxxxx & Bockius Sidley Austin LLP, counsel to the Manager, or other counsel reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, dated such date.
(hg) All filings with the Commission required by Rule 424 and Rule 433 under the Act to have been filed by any Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 and Rule 433.
(ih) The Shares shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement Date.
(ji) The Manager shall have received from the Company all due diligence materials and information reasonably requested by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligations.
(k) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland law.
(l) As of the first Settlement Date, the Manager shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
Appears in 1 contract
Conditions of Manager’s Obligations. The obligations of the Manager hereunder and under any Terms Agreement are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any Representation Dateapplicable date referred to in Section 4(p) of this Agreement, the date of any Time of Sale executed Terms Agreement and as of any each Settlement DateDate and Time of Delivery, (ii) the performance by the Company and the Operating Partnership of their respective its obligations hereunder and (iii) to the following additional conditions precedent.
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares for offer offering or sale in any jurisdiction, or to the knowledge of the Company or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Basic Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Basic Prospectus or Basic Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None No material and unfavorable change, financial or otherwise (other than as referred to in the Registration Statement and Prospectus), in the business, condition or prospects of the Company, Company and each of its Subsidiaries taken as a whole shall occur or become known and no transaction which is material and unfavorable to the Operating Partnership Company (other than as referred to in the Registration Statement and Prospectus) shall have been entered into by the Company or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since the respective dates as of which information is given in the Prospectus, there shall not have been any change in the capital stock of the Company or OP Units or Series A Preferred Units of the Operating Partnership or long-term debt of the Company, the Operating Partnership or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the ProspectusSubsidiaries.
(c) On every date specified in Section 4(p) hereof, the Manager The Company shall have received an opinion of Company Counsel, or other counsel reasonably satisfactory furnish to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 hereto, dated such date.
(d) On at every date specified in Section 4(q) hereofof this Agreement, an opinion of Company Counsel, addressed to the Manager, and dated as of such date, and in form satisfactory to the Manager, in the form set forth in Exhibit A hereto.
(d) At the dates specified in Section 4(s) of this Agreement, the Manager shall have received an opinion from the Accountants letters dated the date of Maryland Counsel, or other counsel reasonably delivery thereof and addressed to the Manager in form and substance satisfactory to the Manager, in form reasonably satisfactory to . At the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On every date dates specified in Section 4(s) hereofof this Agreement, the Manager shall have received from KPMG LLP, or other independent accountants reasonably LLP letters dated the date of delivery thereof and addressed to the Manager in form and substance satisfactory to the Manager, in form and substance reasonably satisfactory .
(e) The Company will deliver to the ManagerManager (A) a certificate, a Comfort Letter, (i) dated as of such date.
and delivered on each Filing Date and (fii) On every date specified in Section 4(o) hereofdated as of and delivered on the Time of Delivery pursuant to any Terms Agreement, the Manager shall have received (each, a certificate executed on behalf “Certificate Date”), of the Company, for itself and in two of its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer executive officers to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 this Agreement are true and correct as of the Representation Certificate Date, (ii) the Company and the Operating Partnership have performed their respective shall perform such of its obligations under this Agreement that they as are required to perform on be performed at or prior to before each such Representation Certificate Date, (iii) no stop order suspending the effectiveness conditions set forth in paragraphs (a) and (b) of the Registration Statement or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall 5 have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission met and (iv) that the Shares to be sold on that date have been duly and validly authorized by the Company and that all corporate action required to be taken for the period authorization, issuance and sale of the Shares on that date has been validly and sufficiently taken and (B) a certificate from the Xxxxx Xxxx, Vice President, Business Development and including General Counsel of the date of this Agreement through and including such Representation Company, dated the Certificate Date, there has not occurred any Material Adverse Effectin the form set forth on Exhibit B hereto.
(gf) On The Manager shall have received, at every date specified in Section 4(r) hereofof this Agreement, the Manager shall have received an favorable opinion of Xxxxxx, Xxxxx & Bockius Sidley Austin LLP, counsel to the Manager, or other counsel reasonably dated as of such date, and in form and substance satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, dated such date.
(hg) All filings with the Commission required by Rule 424 and Rule 433 under the Act to have been filed by any the Settlement Date or the Time of Delivery, as the case may be, shall have been made within the applicable time period prescribed for such filing by Rule 424 and Rule 433424.
(ih) The Shares shall have been approved for listing on the NYSENasdaq, subject only to notice of issuance at or prior to the first Settlement DateDate or the Time of Delivery, as the case may be.
(j) The Manager shall have received from the Company all due diligence materials and information reasonably requested by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligations.
(k) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland law.
(l) As of the first Settlement Date, the Manager shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
Appears in 1 contract
Samples: Equity Distribution Agreement (Hoku Scientific Inc)
Conditions of Manager’s Obligations. The obligations of the Manager hereunder and under any Terms Agreement are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any Representation Dateapplicable date referred to in Section 4(j) of this Agreement, the date of any Time of Sale executed Terms Agreement and as of any each Settlement DateDate and Time of Delivery, (ii) the performance by the Company and the Operating Partnership of their respective its obligations hereunder and (iii) to the following additional conditions precedent.
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares for offer offering or sale in any jurisdiction, or to the knowledge of the Company or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto thereto, or modifications thereof, if any, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iii) none of the Basic Prospectus and all amendments or the Prospectus, and no amendment or supplement supplements thereto, or modifications thereof, if any, shall include not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None of the CompanyNo material and unfavorable change, the Operating Partnership financial or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included otherwise (other than as referred to in the Prospectus any loss or interference with its business or the Properties from fireRegistration Statement and Prospectus), explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectusbusiness, and (ii) since the respective dates as of which information is given in the Prospectus, there shall not have been any change in the capital stock condition or prospects of the Company and the Subsidiary taken as a whole shall occur or OP Units or Series A Preferred Units of become known and no transaction which is material and unfavorable to the Operating Partnership or long-term debt of the Company, the Operating Partnership or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise Company (other than as set forth or contemplated referred to in the Registration Statement and Prospectus, ) shall have been entered into by the effect of which, in any such case described in clause (i) Company or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the ProspectusSubsidiary.
(c) On The Company shall furnish to the Manager, at every date specified in Section 4(p4(k) hereofof this Agreement, the Manager shall have received an opinion of Company Counsel, or other counsel reasonably satisfactory addressed to the Manager, and dated as of such date, and in the form reasonably satisfactory set forth on Exhibit A to this Agreement. In rendering the foregoing opinion, counsel may rely, to the Managerextent it deems such reliance proper, with respect to on the matters set forth in Exhibit A-1 and Exhibit A-2 hereto, dated such date.
opinions (d) On every date specified in Section 4(q) hereof, the Manager shall have received an opinion of Maryland Counsel, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On every date specified in Section 4(s) hereof, the Manager shall have received from KPMG LLP, or other independent accountants reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager) of other counsel acceptable to the Manager as to matters governed by the laws of jurisdictions other than the United States, a Comfort Letterthe State of Delaware and the State of New York, and as to matters of fact, upon certificates of officers of the Company and of government officials; provided that such counsel shall state that the opinion of any other counsel is in form satisfactory to such counsel and, in such counsel's opinion, such counsel and the Manager are justified in relying on such opinions of other counsel.
(d) At the dates specified in Section 4(m) of this Agreement, the Manager shall have received from the Accountants letters dated the date of delivery thereof and addressed to the Manager in form and substance reasonably satisfactory to the Manager.
(e) The Manager shall have received, at every date specified in Section 4(l) of this Agreement, the favorable opinion of the General Counsel, dated as of such date, and in the form set forth on Exhibit B to this Agreement; provided, however, that, on any date that (x) the General Counsel is required to deliver an opinion pursuant to Section 4(l) of this Agreement, and (y) the Company Counsel is not required to deliver an opinion pursuant to Section 4(k) of this Agreement, the opinion to be provided by the General Counsel on such date pursuant to this Section 5(i) shall also include the opinions set forth in paragraphs (a) through (c), (f) and (g) of Exhibit A of this Agreement.
(f) On every date specified in Section 4(o) hereof, The Company will deliver to the Manager shall have received a certificate of the Company, (i) dated as of and delivered on each Filing Date and (ii) dated as of and delivered on the Time of Delivery pursuant to any Terms Agreement (each, a "Certificate Date"), executed on behalf of the Company, for itself and in Company by two of its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer executive officers to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 this Agreement are true and correct as of the Representation Certificate Date, (ii) the Company and the Operating Partnership have has performed their respective such of its obligations under this Agreement that they as are required to perform on be performed at or prior to before each such Representation Certificate Date, and (iiiii) no stop order suspending the effectiveness conditions set forth in paragraphs (a) and (b) of the Registration Statement or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall 5 have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there has not occurred any Material Adverse Effectmet.
(g) On every date specified in Section 4(r) hereof, the The Manager shall have received an received, upon commencement of the offering of shares under this Agreement, and at each time that (i) the Registration Statement or the Prospectus is amended or supplemented (other than a Prospectus Supplement filed pursuant to Rule 424(b) under the Act pursuant to Section 3(a) of this Agreement or a prospectus supplement relating solely to the offering of securities other than the Shares) or (ii) Shares are delivered to the Manager pursuant to a Terms Agreement, the favorable opinion of Xxxxxx, Xxxxx Morrison & Bockius Foerster LLP, counsel to the Manager, or other counsel reasonably dated as of such date, xxx xx foxx xxx xubstance satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, dated such date.
(h) All filings with the Commission required by Rule 424 and Rule 433 under the Act to have been filed by any the Settlement Date or the Time of Delivery, as the case may be, shall have been made within the applicable time period prescribed for such filing by Rule 424 and Rule 433424.
(i) The Shares shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement DateDate or the Time of Delivery, as the case may be.
(j) The Manager shall have received from the Company all due diligence materials and information reasonably requested by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligations.
(k) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland law.
(l) As of the first Settlement Date, the Manager shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
Appears in 1 contract
Conditions of Manager’s Obligations. The obligations of the Manager hereunder and under any Terms Agreement are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any Representation Dateapplicable date referred to in Section 4(l) of this Agreement, the date of any Time of Sale executed Terms Agreement and as of any each Settlement DateDate and Time of Delivery, (ii) the performance by the Company and the Operating Partnership of their respective its obligations hereunder and (iii) to the following additional conditions precedent.:
(ia) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares for offer offering or sale in any jurisdiction, or to the knowledge of the Company or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto thereto, or modifications thereof, if any, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iii) none of the Basic Prospectus and all amendments or the Prospectus, and no amendment or supplement supplements thereto, or modifications thereof, if any, shall include not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None of the CompanyNo material and unfavorable change, the Operating Partnership financial or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included otherwise (other than as referred to in the Prospectus any loss or interference with its Registration Statement and Prospectus), in the business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since the respective dates as of which information is given in the Prospectus, there shall not have been any change in the capital stock condition of the Company or OP Units or Series A Preferred Units of the Operating Partnership or long-term debt of the Companyand its Significant Subsidiaries, the Operating Partnership or any of their respective subsidiaries or any changetaken as a whole, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the Prospectusshall have occurred.
(c) On The Company shall furnish to the Manager, at every date specified in Section 4(p4(m) hereofof this Agreement, an opinion of Company Counsel, addressed to the Manager, and dated as of such date, and in form satisfactory to the Manager, stating those opinions set forth in Annex II of this Agreement. In rendering the foregoing opinion, counsel may rely, to the extent they deem such reliance proper, on the opinions (in form and substance reasonably satisfactory to the Manager) of other counsel acceptable to the Manager as to matters governed by the laws of jurisdictions other than the United States, the State of Delaware and the State of New York, and as to matters of fact, upon certificates of officers of the Company and of government officials; provided that such counsel shall state that the opinion of any other counsel is in form satisfactory to such counsel and, in such counsel's opinion, such counsel and the Manager are justified in relying on such opinions of other counsel.
(d) At the dates specified in Section 4(o) of this Agreement, the Manager shall have received an from the Accountants letters dated the date of delivery thereof and addressed to the Manager in form and substance reasonably satisfactory to the Manager.
(e) The Company will deliver to the Manager a certificate of the Company, (i) dated as of and delivered on each Filing Date and (ii) dated as of and delivered on the Time of Delivery pursuant to any Terms Agreement (each, a "Certificate Date"), of one of its executive officers or other individual who has been delegated authority by such executive officer to act in the officer's capacity certifying on behalf of the Company that to the best of his or her knowledge (A) the representations and warranties of the Company as set forth in this Agreement are true and correct as of the Certificate Date, (B) the Company has performed such of its obligations under this Agreement as are to be performed at or before each such Certificate Date, and (C) the conditions set forth in paragraphs (a) and (b) of Section 5 have been met. In addition, on each Certificate Date, the certificate shall also state that the Shares to be sold on that date have been duly and validly authorized by the Company and that all corporate action required to be taken for the authorization, issuance and sale of the Shares on that date has been validly and sufficiently taken.
(f) The Manager shall have received, at every date specified in Section 4(n) of this Agreement, the favorable opinion of Company Counsel, the General Counsel or such other in-house counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 hereto, dated as of such date.
(d) On every date specified in Section 4(q) hereof, the Manager shall have received an opinion of Maryland Counsel, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On every date specified in Section 4(s) hereof, the Manager shall have received from KPMG LLP, or other independent accountants reasonably satisfactory to the Manager, and in form and substance reasonably satisfactory to the Manager, a Comfort Letterstating those opinions set forth in Annex III of this Agreement; provided, however, that, on any date that (x) the General Counsel is required to deliver an opinion pursuant to Section 4(n) of this Agreement and (y) the Company Counsel is not required to deliver an opinion pursuant to Section 4(m) of this Agreement, the opinion to be provided by the General Counsel on such date pursuant to this Section 5(f) shall also include the opinions set forth in paragraphs (2) through (9) of Annex II of this Agreement. In rendering the foregoing opinion, counsel may rely, to the extent it deems such reliance proper, on the opinions (in form and substance satisfactory to the Manager) of other counsel acceptable to the Manager as to matters governed by the laws of jurisdictions other than the United States and the State of Delaware, and as to matters of fact, upon certificates of officers of the Company and of government officials; provided that such counsel shall state that the opinion of any other counsel is in form satisfactory to such counsel and, in such counsel's opinion, such counsel and the Manager are justified in relying on such opinions of other counsel.
(g) The Manager shall have received, at every date specified in Section 4(n) of this Agreement, the favorable opinion of counsel to the Manager, dated as of such date.
(f) On every date specified in Section 4(o) hereof, the Manager shall have received a certificate executed on behalf of the Company, for itself and in its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President form and any Executive Vice President and the Chief Financial Officer to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 are true and correct as of the Representation Date, (ii) the Company and the Operating Partnership have performed their respective obligations under this Agreement that they are required to perform on or prior to such Representation Date, (iii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there has not occurred any Material Adverse Effect.
(g) On every date specified in Section 4(r) hereof, the Manager shall have received an opinion of Xxxxxx, Xxxxx & Bockius LLP, counsel to the Manager, or other counsel reasonably substance satisfactory to the Manager; provided, in form and substance reasonably satisfactory however, that such opinion may be limited to the Managermatters specified in paragraphs (1), dated such date(2), (3), (6), (7), (8) and (10) of Annex II to this Agreement.
(h) All filings with the Commission required by Rule 424 and Rule 433 under the Act to have been filed by any the Settlement Date or the Time of Delivery, as the case may be, shall have been made within the applicable time period prescribed for such filing by Rule 424 and Rule 433424.
(i) The Shares shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement DateDate or the Time of Delivery, as the case may be.
(j) The Manager shall have received from the Company all due diligence materials and information reasonably requested by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligations.
(k) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland law.
(l) As of the first Settlement Date, the Manager shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
Appears in 1 contract
Samples: Equity Distribution Agreement (Lucent Technologies Inc)
Conditions of Manager’s Obligations. The obligations of the each Manager hereunder are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any Representation applicable Delivery Date, any as of each Time of Sale and as of any each Settlement Date, (ii) the performance by the Company and the Operating Partnership of their respective its obligations hereunder and (iii) to the following additional conditions precedent.:
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Securities Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares Units for offer offering or sale in any jurisdiction, or to the knowledge of the Company Partnership or the Manager Managers of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; misleading and (iii) none of the Basic Base Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None of the Company, the Operating Partnership or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since Subsequent to the respective dates as of which information is given in the Registration Statement, the Base Prospectus and the Prospectus, there no material and unfavorable change, financial or otherwise (other than as referred to in the Registration Statement and Prospectus), in the business, condition or prospects of the Partnership and its Subsidiaries taken as a whole, in the judgment of the Managers, shall not have occurred or become known and no transaction which is material and unfavorable to the Partnership (other than as referred to in the Registration Statement and Prospectus) in the judgment of the Managers, shall have been any change in entered into by the capital stock of the Company or OP Units or Series A Preferred Units of the Operating Partnership or long-term debt of the Company, the Operating Partnership or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the Prospectusits Subsidiaries.
(c) On every date specified in Section 4(p) hereof, the Manager The Partnership shall have received an opinion of Company Counsel, or other counsel reasonably satisfactory furnished to the ManagerManagers, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 hereto, dated such date.
(d) On at every date specified in Section 4(q) hereofof this Agreement, an opinion of Partnership Counsel, addressed to the Managers, and dated as of such date, and in form satisfactory to the Managers, in the form set forth in Exhibit A hereto; provided, however, that in lieu of such opinions for Representation Dates subsequent to the commencement of the offering of the Units under this Agreement, counsel may furnish the Managers with a letter to the effect that the Managers may rely on a prior opinion delivered under Section 4(r) to the same extent as if it were dated the date of such letter (except that statements in such prior opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented at such Delivery Date).
(i) At the dates specified in Section 4(v) of this Agreement, the Manager Managers shall have received an opinion from the Accountants, one or more letters dated the date of Maryland Counseldelivery thereof and addressed to the Managers in form and substance satisfactory to the Manager and (ii) at the date specified in Section 4(w) of this Agreement, or other counsel reasonably the Managers shall have received from EY, a letter dated the date of delivery thereof and addressed to the Managers in form and substance satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On The Partnership shall have delivered to the Managers, at every date Delivery Date specified in Section 4(s4(q) hereof, the Manager shall have received from KPMG LLP, or other independent accountants reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Managerof this Agreement, a Comfort Letter, dated as certificate of such date.
(f) On every date specified in Section 4(o) hereof, the Manager shall have received a certificate executed on behalf two of the Company, for itself and in its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer executive officers to the effect that that:
(i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 this Agreement are true and correct as of the Representation DateDelivery Date with the exception of the representations in Section 2(h) and (j), of which the representation in Section 2(h) and (j) shall be updated in certificates delivered pursuant to this Section 6(e)(i) at subsequent Delivery Dates as follows:
(1) As of the date hereof, the Partnership has no partnership interests issued and outstanding other than (i) the % general partner interest in the Partnership held by the General Partner, (ii) the Company % limited partner interest in the Partnership represented by Common Units, of which Common Units are owned by ETP, representing a % limited partner interest in the Partnership, and are owned by public unitholders representing an aggregate % limited partner interest in the Operating Partnership, and (iii) the Incentive Distribution Rights (as defined in the Partnership Agreement) held by the General Partner.
(2) As of the date hereof, the Partnership has no direct or indirect subsidiaries (as defined under the Securities Act) other than the subsidiaries listed in Schedule A hereto (collectively, sometimes referred to herein as the “Subsidiaries”); other than the Subsidiaries, the Partnership does not own, directly or indirectly, any shares of stock or any other equity interests or long-term debt securities of any corporation, firm, partnership, joint venture, association or other entity (other than as set forth on Schedule A hereto); complete and correct copies of the formation and governing documents of each of the Partnership Entities and all amendments thereto have been delivered to the Managers; and each of the Partnership Entities is in compliance with the laws, orders, rules, regulations and directives issued or administered by such jurisdictions, except where the failure to be in compliance would not, individually or in the aggregate, have a Material Adverse Effect. Attached hereto as Schedule B is a listing of the Material Subsidiaries.
(ii) the Partnership has performed their respective such of its obligations under this Agreement that they as are required to perform on be performed at or prior to before such Representation Delivery Date, and
(iii) no stop order suspending the effectiveness conditions set forth in paragraphs (a) and (b) of Section 6 have been met. The certificate shall also state that the Units have been duly and validly authorized by the Partnership, that all partnership action required to be taken for the issuance and sale of the Registration Statement Units has been validly and sufficiently taken, and that the General Partner’s Board of Directors or any post-effective amendment other body with authority has not revoked, rescinded or otherwise modified or withdrawn such authorization or partnership action.
(f) The Partnership shall have furnished to the Managers, at every date specified in Section 4(s) of this Agreement, an opinion of Pennsylvania Counsel, addressed to the Managers, and dated as of such date, and in form satisfactory to the Managers, in the form set forth in Exhibit B hereto; provided, however, that in lieu of such opinions for Representation Dates subsequent to the commencement of the offering of the Units under this Agreement, counsel may furnish the Managers with a letter to the effect that the Managers may rely on a prior opinion delivered under Section 4(s) to the same extent as if it were dated the date of such letter (except that statements in such prior opinion shall be deemed to relate to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including Prospectus as amended or supplemented at such Representation Delivery Date, there has not occurred any Material Adverse Effect).
(g) On The Managers shall have received, at every date specified in Section 4(r4(t) hereofof this Agreement, a certificate of the Secretary of the General Partner, dated as of such date, and in form and substance satisfactory to the Managers.
(h) The Managers shall have received, at every date specified in Section 4(u) of this Agreement, the Manager shall have received an favorable opinion of Xxxxxx, Xxxxxxx Xxxxx & Bockius LLP, counsel to the ManagerManagers, or other counsel reasonably satisfactory to the Managerdated as of such date, and in form and substance reasonably satisfactory to the ManagerManagers; provided, however, that in lieu of such opinions for Representation Dates subsequent to the commencement of the offering of the Units under this Agreement, counsel may furnish the Managers with a letter to the effect that the Managers may rely on a prior opinion delivered under Section 4(u) to the same extent as if it were dated the date of such dateletter (except that statements in such prior opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented at such Delivery Date).
(hi) All filings with the Commission required by Rule 424 and or Rule 433 under the Securities Act to have been filed by any Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)) and Rule 433, respectively.
(ij) The Shares Units shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement Date.
(jk) The Manager There shall not have received from been any decrease in the Company all due diligence materials and information reasonably requested by rating of any of the Manager Partnership’s or its counsel necessary for the Manager to satisfy its due diligence obligations.
Subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (kas such term is defined under Section 3(a)(62) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland lawExchange Act).
(l) As of the first Settlement Date, the Manager The Partnership shall have received a copy furnished to the Managers, at every date specified in Section 4(q) of this Agreement, such other documents and certificates as the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the CompanyManagers may reasonably request.
Appears in 1 contract
Samples: Equity Distribution Agreement (Sunoco Logistics Partners L.P.)
Conditions of Manager’s Obligations. The obligations of the each Manager hereunder are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any Representation applicable Delivery Date, any as of each Time of Sale and as of any each Settlement Date, (ii) the performance by the Company and the Operating Partnership of their respective its obligations hereunder and (iii) to the following additional conditions precedent.:
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Securities Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares Units for offer offering or sale in any jurisdiction, or to the knowledge of the Company Partnership or the Manager Managers of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; misleading and (iii) none of the Basic Base Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None of the Company, the Operating Partnership or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since Subsequent to the respective dates as of which information is given in the Registration Statement, the Base Prospectus and the Prospectus, there no material and unfavorable change, financial or otherwise (other than as referred to in the Registration Statement and Prospectus), in the business, condition or prospects of the Partnership and its Subsidiaries taken as a whole, in the judgment of the Managers, shall not have occurred or become known and no transaction which is material and unfavorable to the Partnership (other than as referred to in the Registration Statement and Prospectus) in the judgment of the Managers, shall have been any change in entered into by the capital stock of the Company or OP Units or Series A Preferred Units of the Operating Partnership or long-term debt of the Company, the Operating Partnership or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the Prospectusits Subsidiaries.
(c) On every date specified in Section 4(p) hereof, the Manager The Partnership shall have received an opinion of Company Counsel, or other counsel reasonably satisfactory furnished to the ManagerManagers, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 hereto, dated such date.
(d) On at every date specified in Section 4(q) hereofof this Agreement, an opinion of Partnership Counsel, addressed to the Managers, and dated as of such date, and in form satisfactory to the Managers, in the form set forth in Exhibit A hereto; provided, however, that in lieu of such opinions for Representation Dates subsequent to the commencement of the offering of the Units under this Agreement, counsel may furnish the Managers with a letter to the effect that the Managers may rely on a prior opinion delivered under Section 4(r) to the same extent as if it were dated the date of such letter (except that statements in such prior opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented at such Delivery Date).
(i) At the dates specified in Section 4(v) of this Agreement, the Manager Managers shall have received an opinion from the Accountants, one or more letters dated the date of Maryland Counseldelivery thereof and addressed to the Managers in form and substance satisfactory to the Manager and (ii) upon commencement of the offering of the Units under this Agreement, or other counsel reasonably the Managers shall have received from EY, a letter dated the date of delivery thereof and addressed to the Managers in form and substance satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On The Partnership shall have delivered to the Managers, at every date Delivery Date specified in Section 4(s4(q) hereof, the Manager shall have received from KPMG LLP, or other independent accountants reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Managerof this Agreement, a Comfort Letter, dated as certificate of such date.
(f) On every date specified in Section 4(o) hereof, the Manager shall have received a certificate executed on behalf two of the Company, for itself and in its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer executive officers to the effect that that:
(i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 this Agreement are true and correct as of the Representation DateDelivery Date with the exception of the representations in Section 2(h) and (j), of which the representation in Section 2(h) and (j) shall be updated in certificates delivered pursuant to this Section 6(e)(i) at subsequent Delivery Dates as follows:
(1) As of the date hereof, the Partnership has no partnership interests issued and outstanding other than (i) the % general partner interest in the Partnership held by the General Partner, (ii) the Company % limited partner interest in the Partnership represented by (A) Common Units, of which Common Units are owned by ETP, representing a % limited partner interest in the Partnership, and are owned by public unitholders, representing an aggregate % limited partner interest in the Operating Partnership, and (B) Class B Units of the Partnership owned by ETP, representing a % limited partner interest in the Partnership, and (iii) the Incentive Distribution Rights (as defined in the Partnership Agreement) held by the General Partner.
(2) As of the date hereof, the Partnership has no direct or indirect subsidiaries (as defined under the Securities Act) other than the subsidiaries listed in Schedule A hereto (collectively, sometimes referred to herein as the “Subsidiaries”); other than the Subsidiaries, the Partnership does not own, directly or indirectly, any shares of stock or any other equity interests or long-term debt securities of any corporation, firm, partnership, joint venture, association or other entity (other than as set forth on Schedule A hereto); complete and correct copies of the formation and governing documents of each of the Partnership Entities and all amendments thereto have been delivered to the Managers; and each of the Partnership Entities is in compliance with the laws, orders, rules, regulations and directives issued or administered by such jurisdictions, except where the failure to be in compliance would not, individually or in the aggregate, have a Material Adverse Effect. Attached hereto as Schedule B is a listing of the Material Subsidiaries.
(ii) the Partnership has performed their respective such of its obligations under this Agreement that they as are required to perform on be performed at or prior to before such Representation Delivery Date, and
(iii) no stop order suspending the effectiveness conditions set forth in paragraphs (a) and (b) of Section 6 have been met. The certificate shall also state that the Units have been duly and validly authorized by the Partnership, that all partnership action required to be taken for the issuance and sale of the Registration Statement Units has been validly and sufficiently taken, and that the General Partner’s Board of Directors or any post-effective amendment other body with authority has not revoked, rescinded or otherwise modified or withdrawn such authorization or partnership action.
(f) The Partnership shall have furnished to the Managers, at every date specified in Section 4(s) of this Agreement, an opinion of Pennsylvania Counsel, addressed to the Managers, and dated as of such date, and in form satisfactory to the Managers, in the form set forth in Exhibit B hereto; provided, however, that in lieu of such opinions for Representation Dates subsequent to the commencement of the offering of the Units under this Agreement, counsel may furnish the Managers with a letter to the effect that the Managers may rely on a prior opinion delivered under Section 4(s) to the same extent as if it were dated the date of such letter (except that statements in such prior opinion shall be deemed to relate to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including Prospectus as amended or supplemented at such Representation Delivery Date, there has not occurred any Material Adverse Effect).
(g) On The Managers shall have received, at every date specified in Section 4(r4(t) hereofof this Agreement, a certificate of the Secretary of the General Partner, dated as of such date, and in form and substance satisfactory to the Managers.
(h) The Managers shall have received, at every date specified in Section 4(u) of this Agreement, the Manager shall have received an favorable opinion of Xxxxxx, Xxxxxxx Xxxxx & Bockius LLP, counsel to the ManagerManagers, or other counsel reasonably satisfactory to the Managerdated as of such date, and in form and substance reasonably satisfactory to the ManagerManagers; provided, however, that in lieu of such opinions for Representation Dates subsequent to the commencement of the offering of the Units under this Agreement, counsel may furnish the Managers with a letter to the effect that the Managers may rely on a prior opinion delivered under Section 4(u) to the same extent as if it were dated the date of such dateletter (except that statements in such prior opinion shall be deemed to relate to the Registration Statement and the Prospectus as amended or supplemented at such Delivery Date).
(hi) All filings with the Commission required by Rule 424 and or Rule 433 under the Securities Act to have been filed by any Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 (without reliance on Rule 424(b)(8)) and Rule 433, respectively.
(ij) The Shares Units shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement Date.
(jk) The Manager There shall not have received from been any decrease in the Company all due diligence materials and information reasonably requested by rating of any of the Manager Partnership’s or its counsel necessary for the Manager to satisfy its due diligence obligations.
Subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (kas such term is defined under Section 3(a)(62) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland lawExchange Act).
(l) As of the first Settlement Date, the Manager The Partnership shall have received a copy furnished to the Managers, at every date specified in Section 4(q) of this Agreement, such other documents and certificates as the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the CompanyManagers may reasonably request.
Appears in 1 contract
Samples: Equity Distribution Agreement (Sunoco Logistics Partners L.P.)
Conditions of Manager’s Obligations. The obligations of the each Manager hereunder are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any applicable Representation Date, any as of each Time of Sale and as of any each Settlement Date, (ii) the performance by the Company and the Operating Partnership of their respective its obligations hereunder and (iii) to the following additional conditions precedent.:
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares Units for offer offering or sale in any jurisdiction, or to the knowledge of the Company Partnership or the Manager Managers of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iii) none of the Basic Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None of the Company, the Operating Partnership or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since Subsequent to the respective dates as of which information is given in the Registration Statement, the Basic Prospectus and the Prospectus, there no material and unfavorable change, financial or otherwise (other than as referred to in the Registration Statement and Prospectus), in the business, condition or prospects of the Partnership and its Subsidiaries taken as a whole, in the judgment of the Managers, shall not have occurred or become known and no transaction which is material and unfavorable to the Partnership (other than as referred to in the Registration Statement and Prospectus) in the judgment of the Managers, shall have been any change in entered into by the capital stock of the Company or OP Units or Series A Preferred Units of the Operating Partnership or long-term debt of the Company, the Operating Partnership or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the Prospectusits Subsidiaries.
(c) On The Partnership shall have furnished to the Managers, at every date specified in Section 4(p4(r) hereofof this Agreement, the Manager shall have received an opinion of Company Partnership Counsel, or other counsel reasonably addressed to the Managers, and dated as of such date, and in form satisfactory to the ManagerManagers, in the form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 A hereto, dated such date.
(d) On every date specified in Section 4(q) hereof, the Manager The Partnership shall have received an opinion of Maryland Counsel, or other counsel reasonably satisfactory furnished to the ManagerManagers, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On at every date specified in Section 4(s) hereofof this Agreement, an opinion of the Manager shall have received from KPMG LLPGeneral Counsel or any Associate General Counsel of ETP LLC, or other independent accountants reasonably satisfactory addressed to the ManagerManagers, in form and substance reasonably satisfactory to the Manager, a Comfort Letter, dated as of such date, and in form satisfactory to the Managers, in the form set forth in Exhibit B hereto.
(e) At the dates specified in Section 4(v) of this Agreement, the Managers shall have received from the Accountants, and any other independent accountants, letters dated the date of delivery thereof and addressed to the Managers in form and substance satisfactory to the Managers.
(f) On The Partnership shall have delivered to the Managers, at every date Representation Date specified in Section 4(o4(q) hereofof this Agreement, the Manager shall have received a certificate executed on behalf of the Company, for itself and in its capacity as the general partner two of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer ETP LLC’s executive officers to the effect that that:
(i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 this Agreement are true and correct as of the Representation DateDate with the exception of the representations in Section 2(h), (i), (j), (k), (l), (t) and (v), of which the representation in Section 2(h), (i), (j), (k), (l), (t) and (v) shall be updated in certificates delivered pursuant to this Section 6(f) at subsequent Representation Dates as follows, together with such revisions as required to accurately reflect the then-current capitalization and other related representations and warranties by the ETP Entities as set forth below:
(A) The General Partner is the sole general partner of the Partnership and, as of the date hereof, owns an approximate % general partner interest in the Partnership (the “GP Interest”); such GP Interest has been duly authorized and validly issued in accordance with the Partnership Agreement, and the General Partner owns such general partner interest free and clear of all Liens.
(B) As of the date hereof, (i) the limited partners of the Partnership own (A) Common Units, (B) Class E Units, (C) Class G Units, (D) Class H Units, (E) Class I Units, (F) Class J Units and (G) Series A Cumulative Convertible Preferred Units, collectively representing an approximate % limited partner interest in the Partnership, (ii) Common Units are owned by ETE, free and clear of all Liens except , (iii) Class E Units are owned by Heritage Holdings, Inc., free and clear of all Liens, (iv) Class G Units are owned by subsidiaries of Sunoco, Inc., free and clear of all Liens, (v) Class H Units are owned by ETE (or its subsidiaries), free and clear of all Liens, other than and (vi) Class I Units are owned by ETE.
(C) ETE owns % of the issued and outstanding membership interests in ETP LLC; such membership interests have been duly authorized and validly issued in accordance with the ETP LLC limited liability company agreement and are fully paid (to the extent required under the ETP LLC limited liability company agreement) and non-assessable (except as such non-assessability may be affected by matters described in Section 18-607 of the Delaware Limited Liability Company Act); and ETE owns such membership interests free and clear of all Liens, other than Liens .
(D) (i) ETP LLC is the sole general partner of the General Partner, with a % general partner interest in the General Partner; (ii) such interest has been duly authorized and validly issued in accordance with the General Partner’s agreement of limited partnership; (iii) ETP LLC owns such general partner interest free and clear of all Liens; (iv) ETE owns % of the Class A limited partner interests of the General Partner and % of the Class B limited partner interests of the General Partner; (v) such limited partner interests have been duly authorized and validly issued in accordance with the General Partner’s agreement of limited partnership and are fully paid (to the extent required under the General Partner’s agreement of limited partnership) and non-assessable (except as such non-assessability may be affected by Sections 17-303(a), 17-607 and 17-804 of the Delaware LP Act and as otherwise described in the Registration Statement and the Operating Prospectus); and (vi) ETE owns such limited partner interests free and clear of all Liens, other than Liens .
(E) As of the date hereof, the Partnership has no direct or indirect subsidiaries (as defined under the Act) other than the subsidiaries listed in Schedule A (collectively, sometimes referred to herein as the “Subsidiaries”); other than the Subsidiaries, the Partnership does not own, directly or indirectly, any shares of stock or any other equity interests or long-term debt securities of any corporation, firm, partnership, joint venture, association or other entity (other than as set forth on Schedule C); complete and correct copies of the formation and governing documents of each of the ETP Entities and all amendments thereto have been delivered to the Managers; and each of the ETP Entities is in compliance with the laws, orders, rules, regulations and directives issued or administered by such jurisdictions, except where the failure to be in compliance would not, individually or in the aggregate, have a Material Adverse Effect. Attached as Schedule B is a listing of each of the Subsidiaries of the Partnership that is a “significant subsidiary” as defined in Rule 1-02 of Regulation S-X as of the date hereof.
(F) All legal or governmental proceedings, affiliate transactions, off-balance sheet transactions (including, without limitation, transactions related to, and the existence of, “variable interest entities” within the meaning of Financial Accounting Standards Board Interpretation No. 46), contracts, licenses, agreements, properties, leases or documents of a character required to be described in the Registration Statement and the Prospectus or to be filed as an exhibit to the Registration Statement have been so described or filed as required; and the statements included in the Registration Statement and the Prospectus (i) under the headings “Description of Units,” “Cash Distribution Policy,” and “Material U.S. Federal Income Tax Consequences,” and (ii) in the Partnership’s Annual Report on Form 10-K for the year ended December 31, 2015, under the captions “Business – Regulation of Interstate Natural Gas Pipelines,” “Business – Regulation of Intrastate Natural Gas and NGL Pipelines,” “Business – Regulation of Sales of Natural Gas and NGLs,” “Business – Regulation of Gathering Pipelines,” “Business – Regulation of Interstate Crude Oil and Products Pipelines,” “Business – Regulation of Intrastate Crude Oil and Products Pipelines,” “Business – Regulation of Pipeline Safety” and “Legal Proceedings,” in each case, as such matters have been updated by any subsequent Quarterly Report on Form 10-Q or Current Report on Form 8-K filed by the Partnership with the Commission, insofar as such statements summarize legal matters, agreements, documents or proceedings discussed therein, are accurate and fair summaries of such legal matters, agreements, documents or proceedings.
(G) Xxxxx Xxxxxxxx LLP, who have audited the consolidated financial statements of the Partnership as of and for the years ended , are independent registered public accountants as required by the Act and by the rules of the Public Company Accounting Oversight Board (the “PCAOB”); and (ii) , who have audited the consolidated financial statements of and its subsidiaries as of , are independent registered public accountants as required by the Act and by the rules of the PCAOB.
(ii) the Partnership has performed their respective such of its obligations under this Agreement that they as are required to perform on be performed at or prior to before such Representation Date, and
(iii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment to the Registration Statement shall be conditions set forth in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission paragraphs (a) and (ivb) for the period from and including the date of Section 6 of this Agreement through have been met. The certificate shall also state that the Units have been duly and including such Representation Datevalidly authorized by the Partnership, there that all partnership action required to be taken for the issuance and sale of the Units has been validly and sufficiently taken, and that ETP LLC’s Board of Directors or any other body with authority has not occurred any Material Adverse Effectrevoked, rescinded or otherwise modified or withdrawn such authorization or partnership action.
(g) On The Managers shall have received, at every date specified in Section 4(r4(u) hereofof this Agreement, the Manager shall have received an favorable opinion of Xxxxxx, Xxxxxxx Xxxxx & Bockius LLP, counsel to the ManagerManagers, or other counsel reasonably satisfactory to the Managerdated as of such date, and in form and substance reasonably satisfactory to the Manager, dated such dateManagers.
(h) The Managers shall have received, at every date specified in Section 4(t) of this Agreement, a certificate of the Secretary of ETP LLC, dated as of such date, and in form and substance satisfactory to the Managers.
(i) All filings with the Commission required by Rule 424 and Rule 433 under the Act to have been filed by any Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 and (without reliance on Rule 433424(b)(8)).
(ij) The Shares Units shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement Date.
(jk) The Manager There shall not have received from been any decrease in the Company all due diligence materials and information reasonably requested by rating of any of the Manager Partnership’s or its counsel necessary for the Manager to satisfy its due diligence obligations.
Subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (kas such term is defined under Section 3(a)(62) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland lawExchange Act).
(l) As The Partnership shall have furnished to the Managers, at every Representation Date, such other documents and certificates as the Managers may reasonably request. If any of the first Settlement Dateconditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, the Manager shall have received a copy or if any of the Operating Partnership opinions and certificates mentioned above or elsewhere in this Agreement Amendment duly authorizedshall not be reasonably satisfactory in form and substance to any Managers and counsel for such Manager, executed this Agreement, as it relates to such Manager, and delivered all obligations of such Manager hereunder may be canceled at, or at any time prior to, any Settlement Date by the Companysuch Manager.
Appears in 1 contract
Samples: Equity Distribution Agreement (Energy Transfer Partners, L.P.)
Conditions of Manager’s Obligations. The obligations of the Manager hereunder are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any Representation Date, any Time of Sale hereof and as of any each Registration Statement Amendment Date, Company Earnings Report Date, Company Periodic Report Date, Applicable Time and Settlement Date, (ii) the performance by the Company and the Operating Partnership of their respective its obligations hereunder and (iii) to the following additional conditions precedent.:
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the 1933 Act or the 1933 Act Regulations or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, 0000 Xxx and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares for offer offering or sale in any jurisdiction, or to the knowledge of the Company or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto thereto, or modifications thereof, if any, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Basic Prospectus and all amendments or the Prospectussupplements thereto, or modifications thereof, if any, and no amendment or supplement thereto, the General Disclosure Package shall include not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; , (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(i) None of the Company, the Operating Partnership or any of their respective subsidiaries Company shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in filed the Prospectus, and any amendments and supplements thereto, with the Commission (iiincluding the information required by Rule 430B) since the respective dates as of which information is given in the Prospectusmanner and within the time period required by the 1933 Act and the 1933 Act Regulations, and any post-effective amendment thereto containing the information required by Rule 430B shall have become effective, and (v) all material required to be filed by the Company pursuant to Rule 433(d) shall have been filed with the Commission within the applicable time periods prescribed for such filings under Rule 433.
(b) In the judgment of the Manager, there shall not have been occurred any change in the capital stock of the Company or OP Units or Series A Preferred Units of the Operating Partnership or long-term debt of the Company, the Operating Partnership or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the ProspectusMaterial Adverse Effect.
(c) On The Company shall cause to be furnished to the Manager, on every date specified in Section 4(p3(n) hereof, the Manager shall have received an opinion and negative assurance letter of Company Counsel, or other counsel reasonably satisfactory Ropes & Xxxx LLP addressed to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 hereto, dated such date.
(d) On every date specified in Section 4(q) hereof, the Manager shall have received an opinion of Maryland Counsel, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On every date specified in Section 4(s) hereof, the Manager shall have received from KPMG LLP, or other independent accountants reasonably satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, a Comfort Letter, dated as of such date, in form satisfactory to the Manager and its counsel, substantially in the form of Exhibit B-1 and Exhibit B-2 attached hereto.
(fd) On The Company shall cause to be furnished to the Manager, on every date specified in Section 4(o3(o) hereof, from PricewaterhouseCoopers LLP letters dated the date of delivery thereof and addressed to the Manager in form and substance satisfactory to the Manager and its counsel, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements of the Company and its subsidiaries included or incorporated by reference in the Registration Statement.
(e) The Company shall have received furnish to the Manager, on each date specified in Section 3(m) hereof, a certificate executed on behalf of the Company, for itself and in two of its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer executive officers to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 this Agreement are true and correct as of the Representation date of such certificate (the “Certificate Date”), (ii) the Company and the Operating Partnership shall have performed their respective such of its obligations under this Agreement that they as are required to perform on be performed at or prior to before each such Representation Certificate Date, and (iii) no stop order suspending the effectiveness conditions set forth in paragraphs (a) and (b) of the Registration Statement or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to this Section 8A of the Act shall 4 have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there has not occurred any Material Adverse Effectmet.
(gf) On every the date specified in Section 4(r) hereof, the Manager shall have received an the opinion of Xxxxxx, Xxxxxx Xxxxxxxx Xxxxx & Bockius LLP, counsel Xxxxxxxx LLP dated the date hereof and addressed to the Manager, or other counsel reasonably Manager in form and substance satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, dated such date.
(hg) All filings with the Commission required by Rule 424 and Rule 433 under of the 1933 Act Regulations to have been filed by any each Applicable Time or related Settlement Date Date, as the case may be, shall have been made within the applicable time period prescribed for such filing by Rule 424 and (without reliance on Rule 433424(b)(8)).
(ih) The Settlement Shares shall have been approved for listing on the NYSE, subject only to official notice of issuance at or prior issuance.
(i) The Company shall have furnished to the first Manager such other documents and certificates as to the accuracy and completeness of any statement in the Registration Statement, the Prospectus and the General Disclosure Package as of each Settlement DateDate as the Manager may reasonably request.
(j) The Manager Company shall have received from paid the Company all due diligence materials required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the 1933 Act Regulations without regard to the proviso therein and information reasonably requested by otherwise in accordance with Rules 456(b) and 457(r) of the Manager or its counsel necessary for the Manager to satisfy its due diligence obligations1933 Act Regulations.
(k) As FINRA shall not have raised any objection with respect to the fairness and reasonableness of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT terms and shall be effective arrangements under Maryland lawthis Agreement.
(l) As No amendment or supplement to the Registration Statement or Prospectus, including documents deemed to be incorporated by reference therein, shall be filed to which the Manager objects in writing.
(m) Since the later of the first Settlement Datetime of execution of this Agreement and the most recent Applicable Time, there shall not have occurred any downgrading, nor shall any notice or announcement have been given or made of (i) any intended or potential downgrading or (ii) any review or possible change that does not indicate an improvement, in the Manager shall have received a copy rating accorded any securities of or guaranteed by the Company by any “nationally recognized statistical rating organization,” as that term is defined in Rule 436(g)(2) of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company1933 Act Regulations.
Appears in 1 contract
Samples: Distribution Agency Agreement (Affiliated Managers Group Inc)
Conditions of Manager’s Obligations. The obligations of the Manager hereunder and under any Terms Agreement are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any Representation Dateapplicable date referred to in Section 4(q) of this Agreement, the date of any Time of Sale executed Terms Agreement and as of any each Settlement DateDate and Time of Delivery, (ii) the performance by the Company and the Operating Partnership of their respective its obligations hereunder and (iii) to the following additional conditions precedent.
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares for offer offering or sale in any jurisdiction, or to the knowledge of the Company or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) none of the Basic Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus or Basic Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None No material and unfavorable change, financial or otherwise (other than as referred to in the Registration Statement and Prospectus), in the business, condition or prospects of the Company, Company and its Subsidiary taken as a whole shall occur or become known and no transaction which is material and unfavorable to the Operating Partnership Company (other than as referred to in the Registration Statement and Prospectus) shall have been entered into by the Company or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since the respective dates as of which information is given in the Prospectus, there shall not have been any change in the capital stock of the Company or OP Units or Series A Preferred Units of the Operating Partnership or long-term debt of the Company, the Operating Partnership or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the ProspectusSubsidiary.
(c) On every date specified in Section 4(p) hereof, the Manager The Company shall have received an opinion of Company Counsel, or other counsel reasonably satisfactory furnish to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 hereto, dated such date.
(d) On at every date specified in Section 4(q) hereofof this Agreement, the Manager shall have received an opinion opinions of Maryland Company Counsel, or other counsel reasonably addressed to the Manager, and dated as of such date, and in form satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters forms set forth in Exhibit A and Exhibit B hereto, dated such date.
(ed) On every date At the dates specified in Section 4(s) hereofof this Agreement, the Manager shall have received from KPMG LLP, or other independent accountants reasonably the Accountants letters dated the date of delivery thereof and addressed to the Manager in form and substance satisfactory to the Manager, in form and substance reasonably satisfactory .
(e) The Company will deliver to the ManagerManager a certificate, a Comfort Letter, (i) dated as of such date.
and delivered on each Filing Date and (fii) On every date specified in Section 4(o) hereofdated as of and delivered on the Time of Delivery pursuant to any Terms Agreement, the Manager shall have received (each, a certificate executed on behalf “Certificate Date”), of the Company, for itself and in two of its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer executive officers to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 this Agreement are true and correct as of the Representation Certificate Date, (ii) the Company and the Operating Partnership have performed their respective shall perform such of its obligations under this Agreement that they as are required to perform on be performed at or prior to before each such Representation Certificate Date, and (iii) no stop order suspending the effectiveness conditions set forth in paragraphs (a) and (b) of the Registration Statement or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall 5 have been instituted ormet. In addition, on each Certificate Date, the certificate shall also state that the Shares to the knowledge of be sold on that date have been duly and validly authorized by the Company and the Operating Partnership, threatened by the Commission and (iv) that all corporate action required to be taken for the period from authorization, issuance and including sale of the Shares on that date of this Agreement through has been validly and including such Representation Date, there has not occurred any Material Adverse Effectsufficiently taken.
(gf) On The Manager shall have received, at every date specified in Section 4(r4(s) hereofof this Agreement, the Manager shall have received an favorable opinion of Xxxxxx, Xxxxx Shearman & Bockius Sterling LLP, counsel to the Manager, or other counsel reasonably dated as of such date, and in form and substance satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, dated such date.
(hg) All filings with the Commission required by Rule 424 and Rule 433 under the Act to have been filed by any the Settlement Date or the Time of Delivery, as the case may be, shall have been made within the applicable time period prescribed for such filing by Rule 424 and Rule 433424.
(ih) The Shares shall have been approved for listing on the NYSENasdaq, subject only to notice of issuance at or prior to the first Settlement DateDate or the Time of Delivery, as the case may be.
(j) The Manager shall have received from the Company all due diligence materials and information reasonably requested by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligations.
(k) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland law.
(l) As of the first Settlement Date, the Manager shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
Appears in 1 contract
Samples: Equity Distribution Agreement (Maxwell Technologies Inc)
Conditions of Manager’s Obligations. The obligations of the Manager hereunder are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any applicable Representation Date, any as of each Time of Sale and as of any each Settlement Date, (ii) the performance by the Company and the Operating Partnership of their respective its obligations hereunder and (iii) to the following additional conditions precedent.:
(i) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares Units for offer offering or sale in any jurisdiction, or to the knowledge of the Company Partnership or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iii) none of the Basic Prospectus or the Prospectus, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None of the Company, the Operating Partnership or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included in the Prospectus any loss or interference with its business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since Subsequent to the respective dates as of which information is given in the Registration Statement, the Basic Prospectus and the Prospectus, there no material and unfavorable change, financial or otherwise (other than as referred to in the Registration Statement and Prospectus), in the business, condition or prospects of the Partnership and its Subsidiaries taken as a whole, in the judgment of the Manager, shall not have occurred or become known and no transaction which is material and unfavorable to the Partnership (other than as referred to in the Registration Statement and Prospectus) in the judgment of the Manager, shall have been any change in entered into by the capital stock of the Company or OP Units or Series A Preferred Units of the Operating Partnership or long-term debt of the Company, the Operating Partnership or any of their respective subsidiaries or any change, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the Prospectusits Subsidiaries.
(c) On every date specified in Section 4(p) hereof, the Manager The Partnership shall have received an opinion of Company Counsel, or other counsel reasonably satisfactory furnished to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 hereto, dated such date.
(d) On at every date specified in Section 4(q) hereofof this Agreement, the Manager shall have received an opinion of Maryland Partnership Counsel, or other counsel reasonably addressed to the Manager, and dated as of such date, and in form satisfactory to the Manager, in the form reasonably set forth in Exhibit A hereto.
(d) The Partnership shall have furnished to the Manager, at every date specified in Section 4(q) of this Agreement, an opinion of Thomas P. Xxxxx, Xxxx Xresident, General Counsel and Secretary of ETP LLC, addressed to the Manager, and dated as of such date, and in form satisfactory to the Manager, with respect to in the matters form set forth in Exhibit B hereto, dated such date.
(e) On every date At the dates specified in Section 4(s4(v) hereofof this Agreement, the Manager shall have received from KPMG LLPthe Accountants, or and any other independent accountants reasonably accountants, letters dated the date of delivery thereof and addressed to the Manager in form and substance satisfactory to the Manager, in form and substance reasonably satisfactory to the Manager, a Comfort Letter, dated as of such date.
(f) On The Partnership shall have delivered to the Manager, at every date Representation Date specified in Section 4(o4(q) hereofof this Agreement, the Manager shall have received a certificate executed on behalf of the Company, for itself and in its capacity as the general partner two of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer ETP LLC’s executive officers to the effect that that:
(i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 this Agreement are true and correct as of the Representation DateDate with the exception of the representations in Section 2(h), (i), (l) and (v), of which the representation in Section 2(h), (i), (l) and (v) shall be updated in certificates delivered pursuant to this Section 6(f) at subsequent Representation Dates as follows:
(A) The General Partner is the sole general partner of the Partnership with an approximate ____ % general partner interest in the Partnership as of the date hereof.
(B) As of the date hereof, the limited partners of the Partnership own ____________ Common Units, _____________ Class E Units and ________ Class F Units representing an approximate ____% limited partner interest in the Partnership, __________ Common Units of which are owned by ETE, _____ Class E 29 Units of which are owned by Heritage Holdings, Inc., and _______ Class F Units of which are owned by Sunoco, Inc.
(C) As of the date hereof, the Partnership has no direct or indirect subsidiaries (as defined under the Act) other than the subsidiaries listed in Schedule A hereto (collectively, sometimes referred to herein as the “Subsidiaries”); other than the Subsidiaries, the Partnership does not own, directly or indirectly, any shares of stock or any other equity interests or long-term debt securities of any corporation, firm, partnership, joint venture, association or other entity; complete and correct copies of the formation and governing documents of each of the ETP Entities and all amendments thereto have been delivered to the Manager; and each of the ETP Entities is in compliance with the laws, orders, rules, regulations and directives issued or administered by such jurisdictions, except where the failure to be in compliance would not, individually or in the aggregate, have a Material Adverse Effect. Attached hereto as Schedule B is a listing of each of the Subsidiaries of the Partnership that is a “significant subsidiary” as defined in Rule 1-02 of Regulation S‑X as of the date hereof (collectively, the “Material Subsidiaries”).
(D) Grant Thxxxxxx XXX, xxo have audited the consolidated financial statements of the Partnership as of and for the years ended ________ , are independent registered public accountants as required by the Act and by the rules of the Public Company Accounting Oversight Board (the “PCAOB”); and (ii) _____, who have audited the consolidated financial statements of ____________ and its subsidiaries as of ____________, are independent registered public accountants as required by the Act and by the rules of the PCAOB.
(ii) the Company and the Operating Partnership have has performed their respective such of its obligations under this Agreement that they as are required to perform on be performed at or prior to before such Representation Date, and
(iii) no stop order suspending the effectiveness conditions set forth in paragraphs (a) and (b) of Section 6 have been met. The certificate shall also state that the Units have been duly and validly authorized by the Partnership, that all partnership action required to be taken for the issuance and sale of the Registration Statement Units has been validly and sufficiently taken, and that ETP LLC’s Board of Directors or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there other body with authority has not occurred any Material Adverse Effectrevoked, rescinded or otherwise modified or withdrawn such authorization or partnership action.
(g) On The Manager shall have received, at every date specified in Section 4(r4(u) hereofof this Agreement, the Manager shall have received an favorable opinion of XxxxxxAndrews Xxxxx XXX, Xxxxx & Bockius LLP, counsel to the Manager, or other counsel reasonably satisfactory to the Manager, in form and substance reasonably satisfactory xxunsel to the Manager, dated as of such date, and in form and substance satisfactory to the Manager.
(h) The Manager shall have received, at every date specified in Section 4(t) of this Agreement, a certificate of the Secretary of ETP LLC, dated as of such date, and in form and substance satisfactory to the Manager.
(i) All filings with the Commission required by Rule 424 and Rule 433 under the Act to have been filed by any Settlement Date shall have been made within the applicable time period prescribed for such filing by Rule 424 and (without reliance on Rule 433424(b)(8)).
(ij) The Shares Units shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement Date.
(jk) The Manager There shall not have received from been any decrease in the Company all due diligence materials and information reasonably requested by rating of any of the Manager Partnership’s or its counsel necessary for the Manager to satisfy its due diligence obligations.
Subsidiaries’ debt securities by any “nationally recognized statistical rating organization” (kas such term is defined under Section 3(a)(62) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland lawExchange Act).
(l) As The Partnership shall have furnished to the Manager, at every date specified in Section 4(q) of this Agreement, such other documents and certificates as the Representatives may reasonably request. If any of the first Settlement Dateconditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager shall have received a copy and counsel for the Manager, this Agreement and all obligations of the Operating Partnership Agreement Amendment duly authorizedManager hereunder may be canceled at, executed and delivered or at any time prior to, any Settlement Date by the CompanyManager.
Appears in 1 contract
Samples: Equity Distribution Agreement (Energy Transfer Partners, L.P.)
Conditions of Manager’s Obligations. The obligations of the Manager hereunder and under any Terms Agreement are subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership on the date hereof, any Representation Dateapplicable date referred to in Section 4(l) of this Agreement, the date of any Time of Sale executed Terms Agreement and as of any each Settlement DateDate and Time of Delivery, (ii) the performance by the Company and the Operating Partnership of their respective its obligations hereunder and (iii) to the following additional conditions precedent.:
(ia) No stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Act or proceedings initiated under Section 8A, 8(d) or 8(e) of the Act, and no order directed at or in relation to any document incorporated by reference therein and no order preventing or suspending the use of the Prospectus has been issued by the Commission, and no suspension of the qualification of the Shares for offer offering or sale in any jurisdiction, or to the knowledge of the Company or the Manager of the initiation or threatening in writing of any proceedings for any of such purposes, has occurred; (ii) the Registration Statement and all amendments thereto thereto, or modifications thereof, if any, shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; and (iii) none of the Basic Prospectus and all amendments or the Prospectus, and no amendment or supplement supplements thereto, or modifications thereof, if any, shall include not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Prospectus, together with any combination of one or more of the Permitted Free Writing Prospectuses, if any, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; (v) no General Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (vi) none of the Permitted Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(ib) None of the CompanyNo material and unfavorable change, the Operating Partnership financial or any of their respective subsidiaries shall have sustained since the date of the latest audited financial statements included otherwise (other than as referred to in the Prospectus any loss or interference with its Registration Statement and Prospectus), in the business or the Properties from fire, explosion, flood or other calamity whether or not covered by insurance, or from any labor dispute or court or governmental action, order or decree, otherwise than as set forth or contemplated in the Prospectus, and (ii) since the respective dates as of which information is given in the Prospectus, there shall not have been any change in the capital stock condition of the Company or OP Units or Series A Preferred Units of the Operating Partnership or long-term debt of the Companyand its Significant Subsidiaries, the Operating Partnership or any of their respective subsidiaries or any changetaken as a whole, or any development involving a prospective change, in or affecting the general affairs, management, financial position, stockholders’ equity or unitholders’ equity, as applicable, or results of operations of the Company, the Operating Partnership or their respective subsidiaries, considered as one enterprise, otherwise than as set forth or contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in the Manager’s judgment so material and adverse as to make it impracticable or inadvisable to proceed with the offering and sale of the Shares contemplated hereunder on the terms and in the manner contemplated in the Prospectusshall have occurred.
(c) On The Company shall furnish to the Manager, at every date specified in Section 4(p4(m) hereofof this Agreement, an opinion of Company Counsel, addressed to the Manager, and dated as of such date, and in form satisfactory to the Manager, stating those opinions set forth in Annex II of this Agreement. In rendering the foregoing opinion, counsel may rely, to the extent they deem such reliance proper, on the opinions (in form and substance reasonably satisfactory to the Manager) of other counsel acceptable to the Manager as to matters governed by the laws of jurisdictions other than the United States, the State of Delaware and the State of New York, and as to matters of fact, upon certificates of officers of the Company and of government officials; provided that such counsel shall state that the opinion of any other counsel is in form satisfactory to such counsel and, in such counsel's opinion, such counsel and the Manager are justified in relying on such opinions of other counsel.
(d) At the dates specified in Section 4(o) of this Agreement, the Manager shall have received an from the Accountants letters dated the date of delivery thereof and addressed to the Manager in form and substance reasonably satisfactory to the Manager.
(e) The Company will deliver to the Manager a certificate of the Company, (i) dated as of and delivered on each Filing Date and (ii) dated as of and delivered on the Time of Delivery pursuant to any Terms Agreement (each, a "Certificate Date"), of one of its executive officers or other individual who has been delegated authority by such executive officer to act in the officer's capacity certifying on behalf of the Company that to the best of his or her knowledge (A) the representations and warranties of the Company as set forth in this Agreement are true and correct as of the Certificate Date, (B) the Company has performed such of its obligations under this Agreement as are to be performed at or before each such Certificate Date, and (C) the conditions set forth in paragraphs (a) and (b) of Section 5 have been met. In addition, on each Certificate Date, the certificate shall also state that the Shares to be sold on that date have been duly and validly authorized by the Company and that all corporate action required to be taken for the authorization, issuance and sale of the Shares on that date has been validly and sufficiently taken.
(f) The Manager shall have received, at every date specified in Section 4(n) of this Agreement, the favorable opinion of Company Counsel, the General Counsel or such other in-house counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit A-1 and Exhibit A-2 hereto, dated as of such date.
(d) On every date specified in Section 4(q) hereof, the Manager shall have received an opinion of Maryland Counsel, or other counsel reasonably satisfactory to the Manager, in form reasonably satisfactory to the Manager, with respect to the matters set forth in Exhibit B hereto, dated such date.
(e) On every date specified in Section 4(s) hereof, the Manager shall have received from KPMG LLP, or other independent accountants reasonably satisfactory to the Manager, and in form and substance reasonably satisfactory to the Manager, a Comfort Letterstating those opinions set forth in Annex III of this Agreement; provided, dated however, that, on any date that (x) the General Counsel is required to deliver an opinion pursuant to Section 4(n) of this Agreement and (y) the Company Counsel is not required to deliver an opinion pursuant to Section 4(m) of this Agreement, the opinion to be provided by the General Counsel on such date pursuant to this Section 5(f) shall also include the opinions set forth in paragraphs (2) through (9) of Annex II of this Agreement. In rendering the foregoing opinion, counsel may rely, to the extent it deems such reliance proper, on the opinions (in form and substance satisfactory to the Manager) of other counsel acceptable to the Manager as to matters governed by the laws of jurisdictions other than the United States and the State of Delaware, and as to matters of fact, upon certificates of officers of the Company and of government officials; provided that such datecounsel shall state that the opinion of any other counsel is in form satisfactory to such counsel and, in such counsel's opinion, such counsel and the Manager are justified in relying on such opinions of other counsel.
(fg) On The Manager shall have received, at every date specified in Section 4(o4(n) hereofof this Agreement, the Manager shall have received a certificate executed on behalf of the Company, for itself and in its capacity as the general partner of the Operating Partnership, by its Chief Executive Officer, President and any Executive Vice President and the Chief Financial Officer to the effect that (i) the representations and warranties of the Company and the Operating Partnership as set forth in Section 2 are true and correct as of the Representation Date, (ii) the Company and the Operating Partnership have performed their respective obligations under this Agreement that they are required to perform on or prior to such Representation Date, (iii) no stop order suspending the effectiveness of the Registration Statement or any post-effective amendment to the Registration Statement shall be in effect, and no proceedings for such purpose or pursuant to Section 8A of the Act shall have been instituted or, to the knowledge of the Company and the Operating Partnership, threatened by the Commission and (iv) for the period from and including the date of this Agreement through and including such Representation Date, there has not occurred any Material Adverse Effect.
(g) On every date specified in Section 4(r) hereof, the Manager shall have received an favorable opinion of Xxxxxx, Xxxxx Xxxxxxxx & Bockius Xxxxxxxx LLP, counsel to the Manager, or other counsel reasonably dated as of such date, and in form and substance satisfactory to the Manager; provided, in form and substance reasonably satisfactory however, that such opinion may be limited to the Managermatters specified in paragraphs (1), dated such date(2), (3), (6), (7), (8) and (10) of Annex II to this Agreement.
(h) All filings with the Commission required by Rule 424 and Rule 433 under the Act to have been filed by any the Settlement Date or the Time of Delivery, as the case may be, shall have been made within the applicable time period prescribed for such filing by Rule 424 and Rule 433424.
(i) The Shares shall have been approved for listing on the NYSE, subject only to notice of issuance at or prior to the first Settlement DateDate or the Time of Delivery, as the case may be.
(j) The Manager shall have received from the Company all due diligence materials and information reasonably requested by the Manager or its counsel necessary for the Manager to satisfy its due diligence obligations.
(k) As of the first Settlement Date, the Articles of Supplementary shall have been accepted for record by the SDAT and shall be effective under Maryland law.
(l) As of the first Settlement Date, the Manager shall have received a copy of the Operating Partnership Agreement Amendment duly authorized, executed and delivered by the Company.
Appears in 1 contract
Samples: Equity Distribution Agreement (Lucent Technologies Inc)
