Conditions of the Agents’ Obligations. Each Agent’s obligation to solicit purchases on an agency basis for the Shares or otherwise take any action pursuant to a Transaction Acceptance and to purchase the Shares pursuant to any Terms Agreement shall be subject to the satisfaction of the following conditions: (a) At the Time of Acceptance, at the time of the commencement of trading on the Exchange on the Purchase Date(s) and at the relevant Time of Sale and Agency Settlement Date, or with respect to a Principal Transaction pursuant to a Terms Agreement, at the time of execution and delivery of the Terms Agreement by the Company and at the relevant Time of Sale and Principal Settlement Date: (i) The representations, warranties and agreements on the part of the Company herein contained or contained in any certificate of an officer or officers of the Company delivered pursuant to the provisions hereof shall be true and correct in all respects. (ii) The Company shall have performed and observed its covenants and other obligations hereunder and/or under any Terms Agreement, as the case may be, in all material respects. (iii) In the case of an Agency Transaction, from the Time of Acceptance until the Agency Settlement Date, or, in the case of a Principal Transaction pursuant to a Terms Agreement, from the time of execution and delivery of the Terms Agreement by the Company until the Principal Settlement Date, trading in the Common Stock on the Exchange shall not have been suspended. (iv) From the date of this Agreement, no event or condition of a type described in Section 3(e) hereof shall have occurred or shall exist, which event or condition is not described in any Permitted Free Writing Prospectus (excluding any amendment or supplement thereto) or the Prospectus (excluding any amendment or supplement thereto) and the effect of which in the reasonable judgment of the applicable Agent makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares on the applicable Settlement Date on the terms and in the manner contemplated by this Agreement, any Terms Agreement, any Permitted Free Writing Prospectus and the Prospectus. (v) Subsequent to the relevant Time of Acceptance or, in the case of a Principal Transaction, subsequent to execution of the applicable Terms Agreement, (A) no downgrading shall have occurred in the rating accorded any debt securities or preferred equity securities of or guaranteed by the Company or any of the Subsidiaries 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 (B) 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 equity securities of or guaranteed by the Company or any of the Subsidiaries (other than an announcement with positive implications of a possible upgrading) in each case that has not been described in any Permitted Free Writing Prospectus issued prior to any related Time of Sale. (vi) The Shares to be issued pursuant to the Transaction Acceptance or pursuant to a Terms Agreement, as applicable, shall have been approved for listing on the Exchange, subject only to notice of issuance. (vii) (A) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the relevant Settlement Date, prevent the issuance or sale of the Shares and (B) no injunction or order of any federal, state or foreign court shall have been issued that would, as of the relevant Settlement Date, prevent the issuance or sale of the Shares. (A) No order suspending the effectiveness of the Registration Statement shall be in effect, no proceeding for such purpose or pursuant to Section 8A of the Act shall be pending before or threatened by the Commission, and no notice of objection of the Commission to the use of the Registration Statement pursuant to Rule 401(g)(2) under the Act shall have been received by the Company; (B) the Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of any Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Act); (C) all requests by the Commission for additional information shall have been complied with to the satisfaction of the Agent; and (D) no suspension of the qualification of the Shares for offering or sale in any jurisdiction, and no initiation or threatening of any proceedings for any of such purposes, shall have occurred and be in effect. The Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading at the time an Agent delivers a Transaction Acceptance to the Company or the Company and an Agent execute a Terms Agreement, as the case may be. (ix) No amendment or supplement to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall have been filed to which the Agent shall have reasonably objected in writing. (b) At every Bring-Down Delivery Date, the Agents shall have received the officer’s certificates, opinions and negative assurance letters of counsel and a “comfort” letter and other documents provided for under Sections 6(b) through 6(d), inclusive. For purposes of clarity and without limitation to any other provision of this Section 7 or elsewhere in this Agreement, the Company and each of the Agents agree that an Agent’s obligations, if any, to solicit purchases of Shares on an agency basis or otherwise take any action pursuant to a Transaction Acceptance shall, unless otherwise agreed in writing by such Agent, be suspended during the period from and including a Bring-Down Delivery Date through and including the time that such Agent shall have received the documents described in the preceding sentence.
Appears in 2 contracts
Samples: Distribution Agreement (Century Communities, Inc.), Distribution Agreement (Century Communities, Inc.)
Conditions of the Agents’ Obligations. Each Agent’s obligation Agent accepts its appointment hereunder and its obligations set forth herein and in the Notes upon the terms and conditions hereof and thereof, including the following, to solicit purchases on an agency basis for all of which the Shares or otherwise take any action pursuant to a Transaction Acceptance Issuer agrees and to purchase all of which the Shares pursuant rights of the registered holders from time to any Terms Agreement time of the Notes shall be subject to the satisfaction of the following conditionssubject:
(a) At Each Agent shall be entitled to compensation, including costs and expenses, to be agreed upon in writing in a separate letter with the Time Issuer for all services rendered by it, and the Issuer agrees to pay such compensation to the relevant Agent in accordance with the terms agreed between the Issuer and the relevant Agent. The Issuer hereby agrees to indemnify each Agent against any claim, demand, action, liability, damages, cost, loss or expense (including, without limitation, legal fees and any applicable value added tax), which it may incur, other than such costs and expenses as are separately agreed to be reimbursed and otherwise than by reason of Acceptanceits own negligence, at willful misconduct or fraud, as a result or arising out of or in relation to its acting as the time agent of the commencement of trading on Issuer in relation to the Exchange on the Purchase Date(s) and at Notes. These expenses shall include any costs or charges incurred by the relevant Time Agent in carrying out instructions to clear and/or settle transfers of Sale and Agency Settlement Date, or with respect to a Principal Transaction pursuant to a Terms Agreement, at the time of execution and delivery securities under this Agreement (including cash penalty charges that may be incurred under Article 7 of the Terms Agreement Central Securities Depositaries Regulation (EU) No 909/2014 if a settlement fail occurs due to the Issuer's failure to deliver any required securities or cash or other action or omission. Each Agent shall be protected and shall incur no liability for or in respect of any action taken or omitted to be taken or thing suffered by it in reliance upon any notice, direction, instruction, consent, certificate, affidavit, statement, telex, facsimile or other paper or document believed by the Company relevant Agent, acting in good faith, to be genuine and at the relevant Time of Sale and Principal Settlement Date:
(i) The representationsto have been presented, warranties and agreements on the part signed or sent by an Authorized Officer of the Company herein contained Issuer. Under no circumstances shall an Agent be liable to the Issuer for any consequential loss (including the loss of business, goodwill, opportunity or contained in any certificate of an officer or officers profit) even if advised of the Company delivered pursuant to the provisions hereof shall be true and correct in all respects.
(ii) possibility of such loss or damage. The Company shall have performed and observed its covenants and other obligations hereunder and/or under any Terms Agreement, as the case may be, in all material respects.
(iii) In the case of an Agency Transaction, from the Time of Acceptance until the Agency Settlement Date, or, in the case of a Principal Transaction pursuant to a Terms Agreement, from the time of execution and delivery of the Terms Agreement by Issuer under this Section 8(a) shall survive payment of the Company until Notes, the Principal Settlement Date, trading in resignation or removal of such Agent or the Common Stock on the Exchange shall not have been suspended.
(iv) From the date termination of this Agreement, no event or condition of a type described in Section 3(e) hereof shall have occurred or shall exist, which event or condition is not described in any Permitted Free Writing Prospectus (excluding any amendment or supplement thereto) or the Prospectus (excluding any amendment or supplement thereto) and the effect of which in the reasonable judgment of the applicable Agent makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares on the applicable Settlement Date on the terms and in the manner contemplated by this Agreement, any Terms Agreement, any Permitted Free Writing Prospectus and the Prospectus.
(v) Subsequent to the relevant Time of Acceptance or, in the case of a Principal Transaction, subsequent to execution of the applicable Terms Agreement, (A) no downgrading shall have occurred in the rating accorded any debt securities or preferred equity securities of or guaranteed by the Company or any of the Subsidiaries 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 (B) 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 equity securities of or guaranteed by the Company or any of the Subsidiaries (other than an announcement with positive implications of a possible upgrading) in each case that has not been described in any Permitted Free Writing Prospectus issued prior to any related Time of Sale.
(vi) The Shares to be issued pursuant to the Transaction Acceptance or pursuant to a Terms Agreement, as applicable, shall have been approved for listing on the Exchange, subject only to notice of issuance.
(vii) (A) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the relevant Settlement Date, prevent the issuance or sale of the Shares and (B) no injunction or order of any federal, state or foreign court shall have been issued that would, as of the relevant Settlement Date, prevent the issuance or sale of the Shares.
(A) No order suspending the effectiveness of the Registration Statement shall be in effect, no proceeding for such purpose or pursuant to Section 8A of the Act shall be pending before or threatened by the Commission, and no notice of objection of the Commission to the use of the Registration Statement pursuant to Rule 401(g)(2) under the Act shall have been received by the Company; (B) the Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of any Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Act); (C) all requests by the Commission for additional information shall have been complied with to the satisfaction of the Agent; and (D) no suspension of the qualification of the Shares for offering or sale in any jurisdiction, and no initiation or threatening of any proceedings for any of such purposes, shall have occurred and be in effect. The Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading at the time an Agent delivers a Transaction Acceptance to the Company or the Company and an Agent execute a Terms Agreement, as the case may be.
(ix) No amendment or supplement to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall have been filed to which the Agent shall have reasonably objected in writing.
(b) At every Bring-Down Delivery DateIn acting under this Agreement and in connection with the Notes, each Agent is acting solely as agent of the Issuer and does not assume any fiduciary duty, obligation towards or relationship of agency or trust for or with any of the registered holders or beneficial holders of the Notes. Neither Agent shall be liable to account for interest on money paid to it by the Issuer. Any funds held by an Agent need not be segregated from other funds held by it, except as required by law; provided, however, that moneys paid by the Issuer to an Agent for the payment of principal of, premium (if any) or interest on any of the Notes and remaining unclaimed at the end of two years after the date on which such principal, premium (if any) or interest shall have become due and payable (whether at maturity, upon call for redemption or otherwise) shall, together with interest made available for payment thereof, be repaid to the Issuer, as provided and in the manner set forth in the Conditions, whereupon all liability of such Agent with respect to such moneys shall cease.
(c) Each Agent may consult with counsel or other professional adviser (at the cost of the Issuer) satisfactory to it and any advice or written opinion of such counsel or other professional adviser shall be full and complete authorization and protection in respect of any action taken, suffered or omitted to be taken by it hereunder in good faith and without negligence and in accordance with such advice or opinion; provided, however, that such Agent shall notify and receive the consent of the Issuer prior to incurring any fees in respect of this clause 8(c) (to the extent permitted by law) and provided, further, that the Issuer shall only be liable for such fees (i) that are incurred in good faith and properly incurred and (ii) are not incurred as a result of an Agent’s negligence, willful misconduct or fraud.
(d) Each Agent, in its individual capacity or any other capacity, may acquire any interest in any Notes or other obligations of the Issuer with the same rights that it would have if it were not such Agent, and may engage or be interested in any financial or other transaction with the Issuer and may act on, or as depositary, trustee or agent for, any committee or body of holders of Notes or other obligations of the Issuer as freely as if it were not such Agent.
(e) Subject to any written agreement among the Issuer and the Agents to the contrary or as otherwise specified herein, the Agents shall have not be under any liability for interest on any moneys received the officer’s certificates, opinions and negative assurance letters of counsel and a “comfort” letter and other documents provided for under Sections 6(b) through 6(d), inclusive. For purposes of clarity and without limitation by it pursuant to any other provision of the provisions of this Section 7 Agreement or elsewhere the Notes.
(f) The recitals contained in this Agreement, Agreement and in the Company and each of the Agents agree that Notes (except an Agent’s obligationscertificates of authentication) shall be taken as the statements of the Issuer, and the Agents do not assume any responsibility for the correctness of the same. The Agents do not make any representation (other than with respect to itself) as to the validity or sufficiency of this Agreement or the Notes, except for an Agent’s due authorization, execution and delivery of this Agreement and authentication of any Notes. The Agents shall not be accountable for the use or application by the Issuer of any of the Notes and the proceeds thereof.
(g) Each Agent, its officers, employees and agents shall be obligated to perform such duties and only such duties as are specifically set forth in this Agreement and in the Notes, and no implied duties or obligations shall be read into this Agreement or the Notes against it.
(h) Each Agent shall be entitled not to take any action, without liability, if anyit receives instructions from the Issuer which it considers to be conflicting, unclear or equivocal or in order to solicit purchases of Shares on an agency basis or otherwise take comply with any action pursuant to a Transaction Acceptance shall, unless otherwise agreed in writing by such Agent, be suspended during the period from and including a Bring-Down Delivery Date through and including the time that such Agent shall have received the documents described in the preceding sentenceApplicable Law.
Appears in 2 contracts
Samples: Fiscal and Paying Agency Agreement, Fiscal and Paying Agency Agreement
Conditions of the Agents’ Obligations. Each Agent’s obligation The obligations to solicit purchases on an agency basis for the Shares Units or otherwise take any action pursuant to a Transaction Acceptance Notice that has been accepted by the Partnership and to purchase the Shares Units pursuant to any Terms Agreement Agreement, in either case, by the Agent which is party to such Transaction Notice or Terms Agreement, as applicable (such Agent, the “Applicable Agent”) shall be subject to the satisfaction of the following conditions:
(a) At the Time of Acceptance, at the time of the commencement of trading on the Exchange NYSE on the Purchase Date(s) and at the relevant Time of Sale and Agency Settlement Date, or with respect to a Principal Transaction pursuant to a Terms Agreement, at the time of execution and delivery of the Terms Agreement by the Company Partnership and at the relevant Time of Sale and Principal Settlement Date:
(i) The representations, warranties and agreements on the part of the Company Partnership herein contained or contained in any certificate of an officer or officers or the general counsel of the Company Partnership delivered pursuant to the provisions hereof shall be true and correct in all respects.
(ii) The Company Partnership shall have performed and observed its covenants and other obligations hereunder and/or under any Terms Agreement, as the case may be, in all material respects.
(iii) In the case of an Agency Transaction, from the Time of Acceptance until the Agency Settlement Date, or, in the case of a Principal Transaction pursuant to a Terms Agreement, from the time of execution and delivery of the Terms Agreement by the Company Partnership until the Principal Settlement Date, trading in the Common Stock Units on the Exchange NYSE shall not have been suspended.
(iv) From the date of this Agreement, no event or condition of a type described in Section 3(e) hereof shall have occurred or shall exist, which event or condition is not described in any Permitted Free Writing Prospectus (excluding any amendment or supplement thereto) or the Prospectus (excluding any amendment or supplement thereto) and the effect of which in the reasonable judgment of the applicable Agent Representative makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares Units on the applicable Settlement Date on the terms and in the manner contemplated by this Agreement, Agreement or any Terms Agreement, as the case may be, any Permitted Free Writing Prospectus and the Prospectus.
(v) Subsequent to the relevant Time of Acceptance or, in the case of a Principal Transaction, subsequent to execution of the applicable Terms AgreementAcceptance, (A) no downgrading shall have occurred in the rating accorded any debt securities or preferred equity securities of or guaranteed by the Company Partnership or any of the its Subsidiaries by any “nationally recognized statistical rating organization”, ,” as such term is defined by the Commission for purposes of Section 3(a)(62Rule 436(g)(2) of under the Exchange Securities Act and (B) 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 equity securities of or guaranteed by the Company Partnership or any of the its Subsidiaries (other than an announcement with positive implications of a possible upgrading) in each case that has is not been described disclosed in the Prospectus or any Permitted Free Writing Prospectus issued prior to any related Time of Sale.
(vi) The Shares Prior to the Settlement Date, the Units to be issued pursuant to the Transaction Acceptance Notice or pursuant to a Terms Agreement, as applicable, shall have been approved for listing on the ExchangeNYSE, subject only to notice of issuance.
(vii) (A) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the relevant Settlement Date, prevent the issuance or sale of the Shares Units and (B) no injunction or order of any federal, state or foreign court shall have been issued that would, as of the relevant Settlement Date, prevent the issuance or sale of the SharesUnits.
(A) No order suspending the effectiveness of the Registration Statement shall be in effect, no proceeding for such purpose or pursuant to Section 8A of the Securities Act shall be pending before or threatened by the Commission, Commission and no notice of objection of the Commission to the use of the Registration Statement pursuant to Rule 401(g)(2) under the Securities Act shall have been received by the CompanyPartnership; (B) the Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the Commission under the Securities Act (in the case of any Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act); (C) all requests by the Commission for additional information shall have been complied with to the satisfaction of the AgentRepresentation; and (D) no suspension of the qualification of the Shares Units for offering or sale in any jurisdiction, and no initiation or threatening of any proceedings for any of such purposes, shall will have occurred and be in effect. The Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading at the time an Agent delivers the Partnership accepts a Transaction Acceptance to the Company or the Company and an Agent execute a Terms Agreement, as the case may beNotice.
(ix) No amendment or supplement to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall have been filed to which the Agent Representative shall have reasonably objected in writing.
(b) At Within two business days following every Bring-Down Delivery Date, the Agents Representative shall have received the officer’s certificates, general counsel’s certificates, opinions and negative assurance letters of counsel and a counsel, “comfort” letter letters, and to the extent required by Section 2(j), the chief financial officer’s certificates, and other documents provided for under Sections 6(b) through 6(d(e), inclusive. For purposes of clarity and without limitation to any other provision of this Section 7 or elsewhere in this Agreement, the Company and each of the Agents agree that an Agent’s obligations, if any, to solicit purchases of Shares on an agency basis or otherwise take any action pursuant to a Transaction Acceptance shall, unless otherwise agreed in writing by such Agent, be suspended during the period from and including a Bring-Down Delivery Date through and including the time that such Agent shall have received the documents described in the preceding sentence.
Appears in 2 contracts
Samples: Distribution Agreement (Atlas Resource Partners, L.P.), Distribution Agreement (Atlas Resource Partners, L.P.)
Conditions of the Agents’ Obligations. Each Agent’s obligation Agent accepts its appointment hereunder and its obligations set forth herein and in the Notes upon the terms and conditions hereof and thereof, including the following, to solicit purchases on an agency basis for all of which the Shares or otherwise take any action pursuant to a Transaction Acceptance Issuer agrees and to purchase all of which the Shares pursuant rights of the registered holders from time to any Terms Agreement time of the Notes shall be subject to the satisfaction of the following conditionssubject:
(a) At Each Agent shall be entitled to compensation, including costs and expenses, to be agreed upon in writing in a separate letter with the Time Issuer for all services rendered by it, and the Issuer agrees to pay such compensation to the relevant Agent in accordance with the terms agreed between the Issuer and the relevant Agent. The Issuer hereby agrees to indemnify each Agent against any claim, demand, action, liability, damages, cost, loss or expense (including, without limitation, legal fees and any applicable value added tax), which it may incur, other than such costs and expenses as are separately agreed to be reimbursed and otherwise than by reason of Acceptanceits own negligence, at willful misconduct or fraud, as a result or arising out of or in relation to its acting as the time agent of the commencement Issuer in relation to the Notes. Each Agent shall be protected and shall incur no liability for or in respect of trading on the Exchange on the Purchase Date(s) and at any action taken or omitted to be taken or thing suffered by it in reliance upon any notice, direction, instruction, consent, certificate, affidavit, statement, telex, facsimile or other paper or document believed by the relevant Time of Sale Agent, acting in good faith, to be genuine and Agency Settlement Dateto have been presented, signed or with respect to a Principal Transaction pursuant to a Terms Agreement, at the time of execution and delivery sent by an Authorized Officer of the Terms Agreement by Issuer. Under no circumstances shall an Agent be liable to the Company and at Issuer for any consequential loss (including the relevant Time loss of Sale and Principal Settlement Date:
(ibusiness, goodwill, opportunity or profit) The representations, warranties and agreements on the part even if advised of the Company herein contained possibility of such loss or contained in any certificate of an officer or officers damage. The obligations of the Company delivered pursuant to the provisions hereof Issuer under this Section 8(a) shall be true and correct in all respects.
(ii) The Company shall have performed and observed its covenants and other obligations hereunder and/or under any Terms Agreement, as the case may be, in all material respects.
(iii) In the case of an Agency Transaction, from the Time of Acceptance until the Agency Settlement Date, or, in the case of a Principal Transaction pursuant to a Terms Agreement, from the time of execution and delivery survive payment of the Terms Agreement by Notes, the Company until resignation or removal of such Agent or the Principal Settlement Date, trading in the Common Stock on the Exchange shall not have been suspended.
(iv) From the date termination of this Agreement, no event or condition of a type described in Section 3(e) hereof shall have occurred or shall exist, which event or condition is not described in any Permitted Free Writing Prospectus (excluding any amendment or supplement thereto) or the Prospectus (excluding any amendment or supplement thereto) and the effect of which in the reasonable judgment of the applicable Agent makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares on the applicable Settlement Date on the terms and in the manner contemplated by this Agreement, any Terms Agreement, any Permitted Free Writing Prospectus and the Prospectus.
(v) Subsequent to the relevant Time of Acceptance or, in the case of a Principal Transaction, subsequent to execution of the applicable Terms Agreement, (A) no downgrading shall have occurred in the rating accorded any debt securities or preferred equity securities of or guaranteed by the Company or any of the Subsidiaries 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 (B) 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 equity securities of or guaranteed by the Company or any of the Subsidiaries (other than an announcement with positive implications of a possible upgrading) in each case that has not been described in any Permitted Free Writing Prospectus issued prior to any related Time of Sale.
(vi) The Shares to be issued pursuant to the Transaction Acceptance or pursuant to a Terms Agreement, as applicable, shall have been approved for listing on the Exchange, subject only to notice of issuance.
(vii) (A) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the relevant Settlement Date, prevent the issuance or sale of the Shares and (B) no injunction or order of any federal, state or foreign court shall have been issued that would, as of the relevant Settlement Date, prevent the issuance or sale of the Shares.
(A) No order suspending the effectiveness of the Registration Statement shall be in effect, no proceeding for such purpose or pursuant to Section 8A of the Act shall be pending before or threatened by the Commission, and no notice of objection of the Commission to the use of the Registration Statement pursuant to Rule 401(g)(2) under the Act shall have been received by the Company; (B) the Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of any Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Act); (C) all requests by the Commission for additional information shall have been complied with to the satisfaction of the Agent; and (D) no suspension of the qualification of the Shares for offering or sale in any jurisdiction, and no initiation or threatening of any proceedings for any of such purposes, shall have occurred and be in effect. The Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading at the time an Agent delivers a Transaction Acceptance to the Company or the Company and an Agent execute a Terms Agreement, as the case may be.
(ix) No amendment or supplement to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall have been filed to which the Agent shall have reasonably objected in writing.
(b) At every Bring-Down Delivery DateIn acting under this Agreement and in connection with the Notes, each Agent is acting solely as agent of the Agents Issuer and does not assume any fiduciary duty, obligation towards or relationship of agency or trust for or with any of the registered holders or beneficial holders of the Notes. Neither Agent shall be liable to account for interest on money paid to it by the Issuer. Any funds held by an Agent need not be segregated from other funds held by it, except as required by law; provided, however, that moneys paid by the Issuer to an Agent for the payment of principal of, premium (if any) or interest on any of the Notes and remaining unclaimed at the end of two years after the date on which such principal, premium (if any) or interest shall have received become due and payable (whether at maturity, upon call for redemption or otherwise) shall, together with interest made available for payment thereof, be repaid to the officer’s certificatesIssuer, opinions as provided and negative assurance letters in the manner set forth in the Conditions, whereupon all liability of such Agent with respect to such moneys shall cease.
(c) Each Agent may consult with counsel or other professional adviser (at the cost of the Issuer) satisfactory to it and a “comfort” letter any advice or written opinion of such counsel or other professional adviser shall be full and other documents provided for under Sections 6(b) through 6(d)complete authorization and protection in respect of any action taken, inclusive. For purposes of clarity suffered or omitted to be taken by it hereunder in good faith and without limitation to any other provision of this Section 7 negligence and in accordance with such advice or elsewhere in this Agreementopinion; provided, the Company and each of the Agents agree that an Agent’s obligationshowever, if any, to solicit purchases of Shares on an agency basis or otherwise take any action pursuant to a Transaction Acceptance shall, unless otherwise agreed in writing by such Agent, be suspended during the period from and including a Bring-Down Delivery Date through and including the time that such Agent shall have received notify and receive the documents described consent of the Issuer prior to incurring any fees in respect of this clause 8(c) (to the preceding sentence.extent permitted by law) and provided, further, that the Issuer shall only be liable for such fees (i) that are incurred in good faith and properly incurred and
Appears in 1 contract
Samples: Fiscal and Paying Agency Agreement
Conditions of the Agents’ Obligations. Each Agent’s obligation The Agents’ obligations to solicit purchases on an agency basis for the Shares or otherwise take any action pursuant to a Transaction Acceptance and to purchase the Shares pursuant to any Terms Agreement shall be subject to the satisfaction of the following conditions:
(a) At the Time of Acceptance, at the time of the commencement of trading on the Exchange on the Purchase Date(s) and at the relevant Time of Sale and Agency Settlement Date, or with respect to a Principal Transaction pursuant to a Terms Agreement, at the time of execution and delivery of the Terms Agreement by the Company and at the relevant Time of Sale and Principal Settlement Date:
(i) The representations, warranties and agreements on the part of the Company Carvana Parties herein contained or contained in any certificate of an officer or officers officers, general partner, managing member or other authorized representative of the Company Carvana Parties or any subsidiary of the Carvana Parties delivered pursuant to the provisions hereof shall be true and correct in all respects.
(ii) The Company Each of the Carvana Parties shall have performed and observed its covenants and other obligations hereunder and/or under any Terms Agreement, as the case may be, in all material respects.
(iii) In the case of an Agency Transaction, from the Time of Acceptance until the Agency Settlement Date, or, in the case of a Principal Transaction pursuant to a Terms Agreement, from the time of execution and delivery of the Terms Agreement by the Company until the Principal Settlement Date, trading in the Class A Common Stock on the Exchange shall not have been suspended.
(iv) From the date of this Agreement, no event or condition of a type described in Section 3(e) hereof shall have occurred or shall exist, which event or condition is not described in any a Permitted Free Writing Prospectus (excluding any amendment or supplement thereto) or the Prospectus (excluding any amendment or supplement thereto) and the effect of which in the reasonable judgment of the applicable Agent Agents makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares on the applicable Settlement Date on the terms and in the manner contemplated by this Agreement, any Terms Agreement, any Permitted Free Writing Prospectus and the Prospectus.
(v) Subsequent to the relevant Time of Acceptance or, in the case of a Principal Transaction, subsequent to execution of the applicable Terms Agreement, (A) no downgrading shall have occurred in the rating accorded any debt securities or preferred equity securities of or guaranteed by the Company or any of the Subsidiaries its subsidiaries 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 (B) 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 equity securities of or guaranteed by the Company or any of the Subsidiaries its subsidiaries (other than an announcement with positive implications of a possible upgrading) in each case that has not been described in the Prospectus or any Permitted Free Writing Prospectus issued prior to any related Time of Sale.
(vi) The Shares to be issued pursuant to the Transaction Acceptance or pursuant to a Terms Agreement, as applicable, shall have been approved for listing on the Exchange, subject only to notice of issuance.
(vii) (A) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the relevant Settlement Date, prevent the issuance or sale of the Shares and (B) no injunction or order of any federal, state or foreign court shall have been issued that would, as of the relevant Settlement Date, prevent the issuance or sale of the Shares.
(viii) (A) No order suspending the effectiveness of the Registration Statement shall be in effect, no proceeding for such purpose or pursuant to Section 8A of the Act shall be pending before or threatened by the Commission, Commission and no notice of objection of the Commission to the use of the Registration Statement pursuant to Rule 401(g)(2) under the Act shall have been received by the Company; (B) the Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of any Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Act); (C) all requests by the Commission for additional information shall have been complied with to the satisfaction of the AgentAgents; and (D) no suspension of the qualification of the Shares for offering or sale in any jurisdiction, and no initiation or threatening of any proceedings for any of such purposes, shall have occurred and be in effect. The Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading at the time an Agent delivers the Agents deliver a Transaction Acceptance to the Company or the Company and an Agent the Agents execute a Terms Agreement, as the case may be.
(ix) No amendment or supplement to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall have been filed to which the Agent Agents shall have reasonably objected in writing.
(b) At every Within two (2) Exchange Business Days after the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, on such Principal Settlement Date, the Agents shall have received the officer’s certificates, opinions and negative assurance letters of counsel and a “comfort” letter letters and other documents provided for under Sections 6(b) through 6(d(d), inclusive, unless otherwise agreed to by the Agents. For purposes of clarity and without limitation to any other provision of this Section 7 or elsewhere in this Agreement, the Company and each of the Agents parties hereto agree that an Agent’s the Agents’ obligations, if any, to solicit purchases of Shares on an agency basis or otherwise take any action pursuant to a Transaction Acceptance shall, unless otherwise agreed in writing by such Agentthe Agents, be suspended during the period from and including a Bring-Down Delivery Date through and including the time that such Agent the Agents shall have received the documents described in the preceding sentence.
Appears in 1 contract
Samples: Distribution Agreement (Carvana Co.)
Conditions of the Agents’ Obligations. Each Agent’s obligation to solicit purchases on an agency basis for the Shares Units or otherwise take any action pursuant to a Transaction Acceptance and to purchase the Shares Units pursuant to any Terms Agreement shall be subject to the satisfaction of the following conditions:
(a) At the Time of Acceptance, at the time of the commencement of trading on the Exchange on the Purchase Date(s) and at the relevant Time of Sale and Agency Settlement Date, or with respect to a Principal Transaction pursuant to a Terms Agreement, at the time of execution and delivery of the Terms Agreement by the Company Partnership and at the relevant Time of Sale and Principal Settlement Date:
(i) The representations, warranties and agreements on the part of the Company Partnership and the General Partner herein contained or contained in any certificate of an officer or officers officers, general partner, managing member or other authorized representative of the Company Partnership and the General Partner or any subsidiary of the Partnership and the General Partner delivered pursuant to the provisions hereof shall be true and correct in all respects; it being further understood that such representations, warranties and agreements incorporate any modifications to the representations, warranties and agreements set forth in Sections 3(d), 3(e), 3(i) through (p), and 3(ee) hereof that have arisen in the ordinary course of business and as otherwise would not be reasonably likely to result in a Material Adverse Effect, provided that the Partnership shall have provided, or caused to be provided, information relating to such modifications to each of the Agents, or their agents, as part of the due diligence provided for under this Agreement.
(ii) The Company Each of the Partnership and the General Partner shall have performed and observed its respective covenants and other obligations hereunder and/or under any Terms Agreement, as the case may be, in all material respects.
(iii) In the case of an Agency Transaction, from the Time of Acceptance until the Agency Settlement Date, or, in the case of a Principal Transaction pursuant to a Terms Agreement, from the time of execution and delivery of the Terms Agreement by the Company Partnership until the Principal Settlement Date, trading in the Common Stock Units on the Exchange shall not have been suspended.
(iv) From the date of this Agreement, no event or condition of a type described in Section 3(e3(nn) hereof shall have occurred or shall exist, which event or condition is not described in any Permitted Free Writing Prospectus (excluding any amendment or supplement thereto) or the Prospectus (excluding any amendment or supplement thereto) and the effect of which in the reasonable judgment of the applicable Agent Agents makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares Units on the applicable Settlement Date on the terms and in the manner contemplated by this Agreement, any Terms Agreement, any Permitted Free Writing Prospectus and the Prospectus.
(v) Subsequent to the relevant Time of Acceptance or, in the case of a Principal Transaction, subsequent to execution of the applicable Terms Agreement, (A) no downgrading shall have occurred in the rating accorded any debt securities or preferred equity securities of or guaranteed by the Company Partnership or any of the Subsidiaries its subsidiaries 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 (B) 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 equity securities of or guaranteed by the Company Partnership or any of the Subsidiaries its subsidiaries (other than an announcement with positive implications of a possible upgrading) in each case that has not been described in any Permitted Free Writing the Prospectus issued prior to any related Time of Sale.
(vi) The Shares Units to be issued pursuant to the Transaction Acceptance or pursuant to a Terms Agreement, as applicable, shall have been approved for listing on the Exchange, subject only to notice of issuance.
(vii) (A) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the relevant Settlement Date, prevent the issuance or sale of the Shares Units and (B) no injunction or order of any federal, state or foreign court shall have been issued that would, as of the relevant Settlement Date, prevent the issuance or sale of the SharesUnits.
(A) No order suspending the effectiveness of the Registration Statement shall be in effect, no proceeding for such purpose or pursuant to Section 8A of the Securities Act shall be pending before or threatened by the Commission, Commission and no notice of objection of the Commission to the use of the Registration Statement pursuant to Rule 401(g)(2401(g) under the Securities Act shall have been received by the CompanyPartnership; (B) the Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the Commission under the Securities Act (in the case of any Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act); (C) all requests by the Commission for additional information shall have been complied with to the satisfaction of the AgentAgents; and (D) no suspension of the qualification of the Shares Units for offering or sale in any jurisdiction, and no initiation or threatening of any proceedings for any of such purposes, shall have occurred and be in effect. The Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading at the time an Agent delivers a Transaction Acceptance to the Company Partnership or the Company Partnership and an Agent execute a Terms Agreement, as the case may be.
(ix) No amendment or supplement to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall have been filed to which the Agent Agents shall have reasonably objected in writing.
(b) At every Bring-Down Delivery Date, the Agents shall have received the officer’s certificates, opinions and negative assurance letters of counsel and a “comfort” letter and other documents provided for under Sections 6(b) through 6(d), inclusive. For purposes of clarity and without limitation to any other provision of this Section 7 or elsewhere in this Agreement, the Company and each of the Agents agree that an Agent’s obligations, if any, to solicit purchases of Shares on an agency basis or otherwise take any action pursuant to a Transaction Acceptance shall, unless otherwise agreed in writing by such Agent, be suspended during the period from and including a Bring-Down Delivery Date through and including the time that such Agent shall have received the documents described in the preceding sentence.
Appears in 1 contract
Samples: Distribution Agreement (MPLX Lp)
Conditions of the Agents’ Obligations. Each Agent’s The obligation of the Agents, as the agents of the Company, under this Agreement to solicit purchases on an agency basis for the Shares or otherwise take any action pursuant to a Transaction Acceptance and offers to purchase the Shares Notes, the obligation of any person who has agreed to purchase Notes to make payment for and take delivery of the Notes, and the obligation of any Agent to purchase the Notes pursuant to any Terms Agreement shall be Purchase Agreement, is subject to the satisfaction accuracy, on each Representation Date, of the representations and warranties of the Company contained in this Agreement, to the accuracy of the statements of the Company's officers made in any certificate furnished pursuant to the provisions of this Agreement, to the performance by the Company of its obligations under this Agreement and to each of the following additional terms and conditions:
(a) At The Prospectus as amended or supplemented (including the Time of Acceptance, at the time of the commencement of trading on the Exchange on the Purchase Date(sPricing Supplement) and at the relevant Time of Sale and Agency Settlement Date, or with respect to a Principal Transaction pursuant to a Terms Agreement, at the time of execution and delivery of the Terms Agreement by the Company and at the relevant Time of Sale and Principal Settlement Date:
(i) The representations, warranties and agreements on the part of the Company herein contained or contained in any certificate of an officer or officers of the Company delivered pursuant to the provisions hereof shall be true and correct in all respects.
(ii) The Company shall have performed and observed its covenants and other obligations hereunder and/or under any Terms Agreement, as the case may be, in all material respects.
(iii) In the case of an Agency Transaction, from the Time of Acceptance until the Agency Settlement Date, or, in the case of a Principal Transaction pursuant to a Terms Agreement, from the time of execution and delivery of the Terms Agreement by the Company until the Principal Settlement Date, trading in the Common Stock on the Exchange shall not have been suspended.
(iv) From the date of this Agreement, no event or condition of a type described in Section 3(e) hereof shall have occurred or shall exist, which event or condition is not described in any Permitted Free Writing Prospectus (excluding any amendment or supplement thereto) or the Prospectus (excluding any amendment or supplement thereto) and the effect of which in the reasonable judgment of the applicable Agent makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares on the applicable Settlement Date on the terms and in the manner contemplated by this Agreement, any Terms Agreement, any Permitted Free Writing Prospectus and the Prospectus.
(v) Subsequent to the relevant Time of Acceptance or, in the case of a Principal Transaction, subsequent to execution of the applicable Terms Agreement, (A) no downgrading shall have occurred in the rating accorded any debt securities or preferred equity securities of or guaranteed by the Company or any of the Subsidiaries 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 (B) 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 equity securities of or guaranteed by the Company or any of the Subsidiaries (other than an announcement with positive implications of a possible upgrading) in each case that has not been described in any Permitted Free Writing Prospectus issued prior to any related Time of Sale.
(vi) The Shares to be issued pursuant to the Transaction Acceptance or pursuant to a Terms Agreement, as applicable, Notes shall have been approved filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for listing on such filing by the Exchange, subject only to notice of issuance.
(viiRules and Regulations and in accordance with Section 3(a) (A) No action shall have been taken and 3(k); no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the relevant Settlement Date, prevent the issuance or sale of the Shares and (B) no injunction or order of any federal, state or foreign court shall have been issued that would, as of the relevant Settlement Date, prevent the issuance or sale of the Shares.
(A) No stop order suspending the effectiveness of the Registration Statement or any part thereof nor any order directed to any document incorporated by reference in any Prospectus shall be in effect, have been issued and no proceeding for such that purpose or pursuant to Section 8A of the Act shall be pending before have been initiated or threatened by the Commission, ; and no notice of objection any request of the Commission to the use for inclusion of additional information in the Registration Statement pursuant to Rule 401(g)(2) under the Act shall have been received by the Company; (B) the or any Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of any Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Act); (C) all requests by the Commission for additional information or otherwise shall have been complied with to with. No order suspending the satisfaction sale of the Agent; and (D) no suspension of the qualification of the Shares for offering or sale Notes in any jurisdictionjurisdiction designated by the Agents pursuant to Section 3(h) hereof shall have been issued, and no initiation or threatening of any proceedings proceeding for any of such purposes, that purpose shall have occurred been initiated or threatened.
(b) No Agent shall have discovered and be in effect. The disclosed to the Company that the Registration Statement, the Statement or any Prospectus or any Permitted Free Writing Prospectus shall not contain amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of counsel for the Agents, 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 is necessary to make the statements thereintherein not misleading.
(c) All corporate proceedings and other legal matters incident to the authorization, form and validity of this Agreement, each Purchase Agreement, if any, the Indenture, the Notes, the Registration Statement and each Prospectus, and all other legal matters relating to this Agreement and each Purchase Agreement, if any, and the transactions contemplated hereby and thereby shall be satisfactory in all material respects to counsel for the light of Agents, and the circumstances under which Company shall have furnished to such counsel all documents and information that they were mademay reasonably request to enable them to pass upon such matters.
(d) Sidley & Austin, not misleading at counsel to the time an Agent delivers a Transaction Acceptance Company, or other counsel to the Company or satisfactory to the Agents, shall have furnished to the Agents their written opinion, as counsel to the Company, addressed to the Agents and dated the Closing Date, in form and substance acceptable to the Agents to the effect that:
(i) The Indenture has been duly authorized, executed and delivered by the Company and an Agent execute duly qualified under the Trust Indenture Act, and, assuming due authorization, execution and delivery 10 thereof by the Trustee, constitutes a Terms valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms;
(ii) The Notes have been duly authorized by the Company, and, when the terms of a Note and of its issuance and sale have been duly established in accordance with the Indenture, this Agreement and the applicable Purchase Agreement, as if any, and when such Note has been duly executed, authenticated, issued and delivered in the case may be.manner provided in the Indenture and paid for in accordance with this Agreement and the applicable Purchase Agreement, if any, such Note will be duly and validly issued and delivered by the Company and will constitute a valid and legally binding obligation of the Company, enforceable against the Company in accordance with its terms and entitled to the benefits of the Indenture;
(ixiii) No amendment or supplement The Registration Statement was declared effective under the Securities Act as of the date specified in such opinion; any required filing of the Prospectus pursuant to Rule 424(b) of the Rules and Regulations has been made within the time period prescribed by the Rules and Regulations; and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration StatementStatement has been issued and, to the knowledge of such counsel, no proceeding for that purpose is pending or threatened by the Commission;
(iv) At the Effective Time, the Prospectus or any Permitted Free Writing Prospectus shall have been filed to which Registration Statement (including all documents incorporated by reference therein) complied, and on the Agent shall have reasonably objected in writing.
(b) At every Bring-Down Delivery Date, the Agents shall have received the officer’s certificates, opinions and negative assurance letters date of counsel and a “comfort” letter and other documents provided for under Sections 6(b) through 6(d), inclusive. For purposes of clarity and without limitation to any other provision of this Section 7 or elsewhere in this Agreement, the Prospectus (including all documents incorporated by reference therein) complies, and any further amendments or supplements thereto made by the Company on or prior to the date of such opinion comply (other than, in each case, the financial statements and related schedules and other financial and statistical data included or incorporated by reference therein and Form T-1 under the Trust Indenture Act, as to which such counsel need express no opinion) as to form in all material respects with the requirements of the Securities Act, the Exchange Act and the applicable rules and regulations under said Acts;
(v) The Notes, the Indenture and the capital stock of the Company conform in all material respects to the descriptions thereof contained or incorporated by reference in the Registration Statement and the Prospectus; and the provisions of the contracts, agreements and instruments (as the same may be in effect on the Closing Date) summarized in the Prospectus, any supplement thereto or any document incorporated by reference therein, conform in all material respects to the descriptions thereof in the Prospectus, any supplement thereto or any document incorporated by reference therein;
(vi) To such counsel's knowledge, there are no contracts or other documents which are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Rules and Regulations which have not been so filed;
(vii) This Agreement and each of the Agents agree that an Agent’s obligationsPurchase Agreement, if any, have been duly authorized by the Company, and this Agreement and each Purchase Agreement, if any, executed and delivered prior to solicit purchases of Shares on an agency basis or otherwise take any action pursuant to a Transaction Acceptance shall, unless otherwise agreed in writing by such Agent, be suspended during the period from and including a Bring-Down Delivery Date through and including at the time that of delivery of such Agent shall opinion have received been duly executed and delivered by the documents described Company;
(viii) The sale of the Notes by the Company, compliance by the Company with all of the provisions of this Agreement, each Purchase Agreement, if any, executed and delivered prior to or at the time of delivery of such opinion, the Indenture and the Notes and the consummation by the Company of the transactions contemplated hereby and thereby will not result in a breach or violation of any of the preceding sentence.terms or provisions of, or constitute a default under, any agreement or instrument scheduled in such opinion (as in effect on the date of such opinion), and, except for the registration of the Notes under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Trust Indenture Act, the Exchange Act and applicable state or foreign securities laws in connection with the offer and sale of the Notes, no consent, approval, authorization or order of, or filing or registration with, any court or any governmental agency or body is required for the execution, delivery and performance of this Agreement or the applicable Purchase Agreement, if any, by the Company and the consummation by the Company of the transactions contemplated hereby; and
Appears in 1 contract
Conditions of the Agents’ Obligations. Each Agent’s obligation to solicit purchases on an agency basis for the Shares Securities or otherwise take any action pursuant to a Transaction Acceptance and to purchase the Shares Securities pursuant to any Terms Agreement shall be subject to the satisfaction of the following conditions:
(a) At the Time of Acceptance, at the time of the commencement of trading on the Exchange on the Purchase Date(s) and at the relevant Time of Sale and Agency Settlement Date, or with respect to a Principal Transaction pursuant to a Terms Agreement, at the time of execution and delivery of the Terms Agreement by the Company Partnership and at the relevant Time of Sale and Principal Settlement Date:
(i) The representations, warranties and agreements on the part of the Company Partnership and the General Partner herein contained or contained in any certificate of an officer or officers officers, general partner, managing member or other authorized representative of the Company Partnership and the General Partner or any subsidiary of the Partnership and the General Partner delivered pursuant to the provisions hereof shall be true and correct in all respects.
(ii) The Company Each of the Partnership and the General Partner shall have performed and observed its respective covenants and other obligations hereunder and/or under any Terms Agreement, as the case may be, in all material respects.
(iii) In the case of an Agency Transaction, from the Time of Acceptance until the Agency Settlement Date, or, in the case of a Principal Transaction pursuant to a Terms Agreement, from the time of execution and delivery of the Terms Agreement by the Company Partnership until the Principal Settlement Date, trading in the Common Stock LP Units on the Exchange shall not have been suspended.
(iv) From the date of this Agreement, no event or condition of a type described in Section 3(e3(gg) hereof shall have occurred or shall exist, which event or condition is not described in any Permitted Free Writing Prospectus (excluding any amendment or supplement thereto) or the Prospectus (excluding any amendment or supplement thereto) and the effect of which in the reasonable judgment of the applicable Agent Agents makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares Securities on the applicable Settlement Date on the terms and in the manner contemplated by this Agreement, any Terms Agreement, any Permitted Free Writing Prospectus and the Prospectus.
(v) Subsequent to the relevant Time of Acceptance or, in the case of a Principal Transaction, subsequent to execution of the applicable Terms Agreement, (A) no downgrading shall have occurred in the rating accorded any debt securities or preferred equity securities of or guaranteed by the Company Partnership or any of the Subsidiaries its subsidiaries 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 (B) 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 equity securities of or guaranteed by the Company Partnership or any of the Subsidiaries its subsidiaries (other than an announcement with positive implications of a possible upgrading) in each case that has not been described in any Permitted Free Writing the Prospectus issued prior to any related Time of Sale.
(vi) The Shares Securities to be issued pursuant to the Transaction Acceptance or pursuant to a Terms Agreement, as applicable, shall have been approved for listing on the Exchange, subject only to notice of issuance.
(vii) (A) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the relevant Settlement Date, prevent the issuance or sale of the Shares Securities and (B) no injunction or order of any federal, state or foreign court shall have been issued that would, as of the relevant Settlement Date, prevent the issuance or sale of the SharesSecurities.
(viii) (A) No order suspending the effectiveness of the Registration Statement shall be in effect, no proceeding for such purpose or pursuant to Section 8A of the Securities Act shall be pending before or threatened by the Commission, Commission and no notice of objection of the Commission to the use of the Registration Statement pursuant to Rule 401(g)(2401(g) under the Securities Act shall have been received by the CompanyPartnership; (B) the Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the Commission under the Securities Act (in the case of any Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act); (C) all requests by the Commission for additional information shall have been complied with to the satisfaction of the AgentAgents; and (D) no suspension of the qualification of the Shares Securities for offering or sale in any jurisdiction, and no initiation or threatening of any proceedings for any of such purposes, shall have occurred and be in effect. The Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading at the time an Agent delivers a Transaction Acceptance to the Company Partnership or the Company Partnership and an Agent execute a Terms Agreement, as the case may be.
(ix) No amendment or supplement to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall have been filed to which the Agent Agents shall have reasonably objected in writing.
(b) At every Within three Exchange Business Days after the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, on such Principal Settlement Date, the Agents shall have received the officer’s officers’ certificates, opinions and negative assurance letters of counsel and a “comfort” letter letters and other documents provided for required under Sections 6(b) through 6(d), inclusive. For purposes of clarity and without limitation to any other provision of this Section 7 or elsewhere in this Agreement, the Company and each of the Agents parties hereto agree that an Agent’s the Agents’ obligations, if any, to solicit purchases of Shares Securities on an agency basis or otherwise take any action pursuant to a Transaction Acceptance shall, unless otherwise agreed in writing by such Agentthe Agents, be suspended during the period from and including a Bring-Down Delivery Date through and including the time that such Agent the Agents shall have received the documents described in the preceding sentence.
Appears in 1 contract
Conditions of the Agents’ Obligations. Each Agent’s obligation to solicit purchases on an agency basis for the Shares or otherwise take any action pursuant to a Transaction Acceptance and to purchase the Shares pursuant to any Terms Agreement shall be subject to the satisfaction of the following conditions:
(a) At the Time of Acceptance, at the time of the commencement of trading on the Exchange on the Purchase Date(s) and at the relevant Time of Sale and Agency Settlement Date, or with respect to a Principal Transaction pursuant to a Terms Agreement, at the time of execution and delivery of the Terms Agreement by the Company and at the relevant Time of Sale and Principal Settlement Date:
(i) The representations, warranties and agreements on the part of the Company herein contained or contained in any certificate of an officer or officers of the Company delivered pursuant to the provisions hereof shall be true and correct in all respects.
(ii) The Company shall have performed and observed its covenants and other obligations hereunder and/or under any Terms Agreement, as the case may be, in all material respects.
(iii) In the case of an Agency Transaction, from the Time of Acceptance until the Agency Settlement Date, or, in the case of a Principal Transaction pursuant to a Terms Agreement, from the time of execution and delivery of the Terms Agreement by the Company until the Principal Settlement Date, trading in the Common Stock on the Exchange shall not have been suspended.
(iv) From the date of this Agreement, no event or condition of a type described in Section 3(e) hereof shall have occurred or shall exist, which event or condition is not described in any Permitted Free Writing Prospectus (excluding any amendment or supplement thereto) or the Prospectus (excluding any amendment or supplement thereto) and the effect of which in the reasonable judgment of the applicable Agent makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares on the applicable Settlement Date on the terms and in the manner contemplated by this Agreement, any Terms Agreement, any Permitted Free Writing Prospectus and the Prospectus.
(v) Subsequent to the relevant Time of Acceptance or, in the case of a Principal Transaction, subsequent to execution of the applicable Terms Agreement, (A) no downgrading shall have occurred in the rating accorded any debt securities or preferred equity securities of or guaranteed by the Company or any of the Subsidiaries 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 (B) 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 equity securities of or guaranteed by the Company or any of the Subsidiaries (other than an announcement with positive implications of a possible upgrading) in each case that has not been described in any Permitted Free Writing Prospectus issued prior to any related Time of Sale.
(vi) The Shares to be issued pursuant to the Transaction Acceptance or pursuant to a Terms Agreement, as applicable, shall have been approved for listing on the Exchange, subject only to notice of issuance.
(vii) (A) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the relevant Settlement Date, prevent the issuance or sale of the Shares and (B) no injunction or order of any federal, state or foreign court shall have been issued that would, as of the relevant Settlement Date, prevent the issuance or sale of the Shares.
(A) No order suspending the effectiveness of the Registration Statement shall be in effect, no proceeding for such purpose or pursuant to Section 8A of the Act shall be pending before or threatened by the Commission, and no notice of objection of the Commission to the use of the Registration Statement pursuant to Rule 401(g)(2) under the Act shall have been received by the Company; (B) the Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of any Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Act); (C) all requests by the Commission for additional information shall have been complied with to the satisfaction of the Agent; and (D) no suspension of the qualification of the Shares for offering or sale in any jurisdiction, and no initiation or threatening of any proceedings for any of such purposes, shall have occurred and be in effect. The Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading at the time an Agent delivers a Transaction Acceptance to the Company or the Company and an Agent execute a Terms Agreement, as the case may be.
(ix) No amendment or supplement to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall have been filed to which the Agent shall have reasonably objected in writing.
(b) At every Bring-Down Delivery Date, the Agents shall have received the officer’s certificates, opinions and negative assurance letters of counsel and a “comfort” letter and other documents provided for under Sections 6(b) through 6(d), inclusive. For purposes of clarity and without limitation to any other provision of this Section 7 or elsewhere in this Agreement, the Company and each of the Agents agree that an Agent’s obligations, if any, to solicit purchases of Shares on an agency basis or otherwise take any action pursuant to a Transaction Acceptance shall, unless otherwise agreed in writing by such Agent, be suspended during the period from and including a Bring-Down Delivery Date through and including the time that such Agent shall have received the documents described in the preceding sentence.
Appears in 1 contract
Conditions of the Agents’ Obligations. Each Agent’s obligation Agent accepts its appointment hereunder and its obligations set forth herein and in the Notes upon the terms and conditions hereof and thereof, including the following, to solicit purchases on an agency basis for all of which the Shares or otherwise take any action pursuant to a Transaction Acceptance Issuer agrees and to purchase all of which the Shares pursuant rights of the registered holders from time to any Terms Agreement time of the Notes shall be subject to the satisfaction of the following conditionssubject:
(a) At Each Agent shall be entitled to compensation, including costs and expenses, to be agreed upon in writing in a separate letter with the Time Issuer for all services rendered by it, and the Issuer agrees to pay such compensation to the relevant Agent in accordance with the terms agreed between the Issuer and the relevant Agent. The Issuer hereby agrees to indemnify each Agent against any claim, demand, action, liability, damages, cost, loss or expense (including, without limitation, legal fees and any applicable value added tax), which it may incur, other than such costs and expenses as are separately agreed to be reimbursed and otherwise than by reason of Acceptanceits own negligence, at willful misconduct or fraud, as a result or arising out of or in relation to its acting as the time agent of the commencement Issuer in relation to the Notes. Each Agent shall be protected and shall incur no liability for or in respect of trading on the Exchange on the Purchase Date(s) and at any action taken or omitted to be taken or thing suffered by it in reliance upon any notice, direction, instruction, consent, certificate, affidavit, statement, telex, facsimile or other paper or document believed by the relevant Time of Sale Agent, acting in good faith, to be genuine and Agency Settlement Dateto have been presented, signed or with respect to a Principal Transaction pursuant to a Terms Agreement, at the time of execution and delivery sent by an Authorized Officer of the Terms Agreement by Issuer. Under no circumstances shall an Agent be liable to the Company and at Issuer for any consequential loss (including the relevant Time loss of Sale and Principal Settlement Date:
(ibusiness, goodwill, opportunity or profit) The representations, warranties and agreements on the part even if advised of the Company herein contained possibility of such loss or contained in any certificate of an officer or officers damage. The obligations of the Company delivered pursuant to the provisions hereof Issuer under this Section 8(a) shall be true and correct in all respects.
(ii) The Company shall have performed and observed its covenants and other obligations hereunder and/or under any Terms Agreement, as the case may be, in all material respects.
(iii) In the case of an Agency Transaction, from the Time of Acceptance until the Agency Settlement Date, or, in the case of a Principal Transaction pursuant to a Terms Agreement, from the time of execution and delivery survive payment of the Terms Agreement by Notes, the Company until resignation or removal of such Agent or the Principal Settlement Date, trading in the Common Stock on the Exchange shall not have been suspended.
(iv) From the date termination of this Agreement, no event or condition of a type described in Section 3(e) hereof shall have occurred or shall exist, which event or condition is not described in any Permitted Free Writing Prospectus (excluding any amendment or supplement thereto) or the Prospectus (excluding any amendment or supplement thereto) and the effect of which in the reasonable judgment of the applicable Agent makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares on the applicable Settlement Date on the terms and in the manner contemplated by this Agreement, any Terms Agreement, any Permitted Free Writing Prospectus and the Prospectus.
(v) Subsequent to the relevant Time of Acceptance or, in the case of a Principal Transaction, subsequent to execution of the applicable Terms Agreement, (A) no downgrading shall have occurred in the rating accorded any debt securities or preferred equity securities of or guaranteed by the Company or any of the Subsidiaries 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 (B) 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 equity securities of or guaranteed by the Company or any of the Subsidiaries (other than an announcement with positive implications of a possible upgrading) in each case that has not been described in any Permitted Free Writing Prospectus issued prior to any related Time of Sale.
(vi) The Shares to be issued pursuant to the Transaction Acceptance or pursuant to a Terms Agreement, as applicable, shall have been approved for listing on the Exchange, subject only to notice of issuance.
(vii) (A) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the relevant Settlement Date, prevent the issuance or sale of the Shares and (B) no injunction or order of any federal, state or foreign court shall have been issued that would, as of the relevant Settlement Date, prevent the issuance or sale of the Shares.
(A) No order suspending the effectiveness of the Registration Statement shall be in effect, no proceeding for such purpose or pursuant to Section 8A of the Act shall be pending before or threatened by the Commission, and no notice of objection of the Commission to the use of the Registration Statement pursuant to Rule 401(g)(2) under the Act shall have been received by the Company; (B) the Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of any Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Act); (C) all requests by the Commission for additional information shall have been complied with to the satisfaction of the Agent; and (D) no suspension of the qualification of the Shares for offering or sale in any jurisdiction, and no initiation or threatening of any proceedings for any of such purposes, shall have occurred and be in effect. The Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading at the time an Agent delivers a Transaction Acceptance to the Company or the Company and an Agent execute a Terms Agreement, as the case may be.
(ix) No amendment or supplement to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall have been filed to which the Agent shall have reasonably objected in writing.
(b) At every Bring-Down Delivery DateIn acting under this Agreement and in connection with the Notes, each Agent is acting solely as agent of the Issuer and does not assume any fiduciary duty, obligation towards or relationship of agency or trust for or with any of the registered holders or beneficial holders of the Notes. Neither Agent shall be liable to account for interest on money paid to it by the Issuer. Any funds held by an Agent need not be segregated from other funds held by it, except as required by law; provided, however, that moneys paid by the Issuer to an Agent for the payment of principal of, premium (if any) or interest on any of the Notes and remaining unclaimed at the end of two years after the date on which such principal, premium (if any) or interest shall have become due and payable (whether at maturity, upon call for redemption or otherwise) shall, together with interest made available for payment thereof, be repaid to the Issuer, as provided and in the manner set forth in the Conditions, whereupon all liability of such Agent with respect to such moneys shall cease.
(c) Each Agent may consult with counsel or other professional adviser (at the cost of the Issuer) satisfactory to it and any advice or written opinion of such counsel or other professional adviser shall be full and complete authorization and protection in respect of any action taken, suffered or omitted to be taken by it hereunder in good faith and without negligence and in accordance with such advice or opinion; provided, however, that such Agent shall notify and receive the consent of the Issuer prior to incurring any fees in respect of this clause 8(c) (to the extent permitted by law) and provided, further, that the Issuer shall only be liable for such fees (i) that are incurred in good faith and properly incurred and (ii) are not incurred as a result of an Agent’s negligence, willful misconduct or fraud.
(d) Each Agent, in its individual capacity or any other capacity, may acquire any interest in any Notes or other obligations of the Issuer with the same rights that it would have if it were not such Agent, and may engage or be interested in any financial or other transaction with the Issuer and may act on, or as depositary, trustee or agent for, any committee or body of holders of Notes or other obligations of the Issuer as freely as if it were not such Agent.
(e) Subject to any written agreement among the Issuer and the Agents to the contrary or as otherwise specified herein, the Agents shall have not be under any liability for interest on any moneys received the officer’s certificates, opinions and negative assurance letters of counsel and a “comfort” letter and other documents provided for under Sections 6(b) through 6(d), inclusive. For purposes of clarity and without limitation by it pursuant to any other provision of the provisions of this Section 7 Agreement or elsewhere the Notes.
(f) The recitals contained in this Agreement, Agreement and in the Company and each of the Agents agree that Notes (except an Agent’s obligationscertificates of authentication) shall be taken as the statements of the Issuer, and the Agents do not assume any responsibility for the correctness of the same. The Agents do not make any representation (other than with respect to itself) as to the validity or sufficiency of this Agreement or the Notes, except for an Agent’s due authorization, execution and delivery of this Agreement and authentication of any Notes. The Agents shall not be accountable for the use or application by the Issuer of any of the Notes and the proceeds thereof.
(g) Each Agent, its officers, employees and agents shall be obligated to perform such duties and only such duties as are specifically set forth in this Agreement and in the Notes, and no implied duties or obligations shall be read into this Agreement or the Notes against it.
(h) Each Agent shall be entitled not to take any action, without liability, if anyit receives instructions from the Issuer which it considers to be conflicting, unclear or equivocal or in order to solicit purchases of Shares on an agency basis or otherwise take comply with any action pursuant to a Transaction Acceptance shall, unless otherwise agreed in writing by such Agent, be suspended during the period from and including a Bring-Down Delivery Date through and including the time that such Agent shall have received the documents described in the preceding sentenceApplicable Law.
Appears in 1 contract
Samples: Fiscal and Paying Agency Agreement
Conditions of the Agents’ Obligations. Each Agent’s obligation The Agents’ obligations to solicit purchases on an agency basis for the Shares or otherwise take any action pursuant to a Transaction Acceptance and to purchase the Shares pursuant to any Terms Agreement shall be subject to the satisfaction of the following conditions:
(a) At the Time of Acceptance, at the time of the commencement of trading on the Exchange on the Purchase Date(s) and at the relevant Time of Sale and Agency Settlement Date, or with respect to a Principal Transaction pursuant to a Terms Agreement, at the time of execution and delivery of the Terms Agreement by the Company and at the relevant Time of Sale and Principal Settlement Date:
(i) The representations, warranties and agreements on the part of the Company Carvana Parties herein contained or contained in any certificate of an officer or officers officers, general partner, managing member or other authorized representative of the Company Carvana Parties or any subsidiary of the Carvana Parties delivered pursuant to the provisions hereof shall be true and correct in all respects.
(ii) The Company Each of the Carvana Parties shall have performed and observed its covenants and other obligations hereunder and/or under any Terms Agreement, as the case may be, in all material respects.
(iii) In the case of an Agency Transaction, from the Time of Acceptance until the Agency Settlement Date, or, in the case of a Principal Transaction pursuant to a Terms Agreement, from the time of execution and delivery of the Terms Agreement by the Company until the Principal Settlement Date, trading in the Class A Common Stock and the Rights on the Exchange shall not have been suspended.
(iv) From the date of this Agreement, no event or condition of a type described in Section 3(e) hereof shall have occurred or shall exist, which event or condition is not described in any a Permitted Free Writing Prospectus (excluding any amendment or supplement thereto) or the Prospectus (excluding any amendment or supplement thereto) and the effect of which in the reasonable judgment of the applicable Agent Agents makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares on the applicable Settlement Date on the terms and in the manner contemplated by this Agreement, any Terms Agreement, any Permitted Free Writing Prospectus and the Prospectus.
(v) Subsequent to the relevant Time of Acceptance or, in the case of a Principal Transaction, subsequent to execution of the applicable Terms Agreement, (A) no downgrading shall have occurred in the rating accorded any debt securities or preferred equity securities of or guaranteed by the Company or any of the Subsidiaries its subsidiaries 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 (B) 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 equity securities of or guaranteed by the Company or any of the Subsidiaries its subsidiaries (other than an announcement with positive implications of a possible upgrading) in each case that has not been described in the Prospectus or any Permitted Free Writing Prospectus issued prior to any related Time of Sale.
(vi) The Shares to be issued pursuant to the Transaction Acceptance or pursuant to a Terms Agreement, as applicable, shall have been approved for listing on the Exchange, subject only to notice of issuance.
(vii) (A) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the relevant Settlement Date, prevent the issuance or sale of the Shares and (B) no injunction or order of any federal, state or foreign court shall have been issued that would, as of the relevant Settlement Date, prevent the issuance or sale of the Shares.
(A) No order suspending the effectiveness of the Registration Statement shall be in effect, no proceeding for such purpose or pursuant to Section 8A of the Act shall be pending before or threatened by the Commission, Commission and no notice of objection of the Commission to the use of the Registration Statement pursuant to Rule 401(g)(2) under the Act shall have been received by the Company; (B) the Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of any Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Act); (C) all requests by the Commission for additional information shall have been complied with to the satisfaction of the AgentAgents; and (D) no suspension of the qualification of the Shares for offering or sale in any jurisdiction, and no initiation or threatening of any proceedings for any of such purposes, shall have occurred and be in effect. The Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading at the time an Agent delivers the Agents deliver a Transaction Acceptance to the Company or the Company and an Agent the Agents execute a Terms Agreement, as the case may be.
(ix) No amendment or supplement to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall have been filed to which the Agent Agents shall have reasonably objected in writing.
(b) At every Within two (2) Exchange Business Days after the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, on such Principal Settlement Date, the Agents shall have received the officer’s certificates, opinions and negative assurance letters of counsel and a “comfort” letter letters and other documents provided for under Sections 6(b) through 6(d(d), inclusive, unless otherwise agreed to by the Agents. For purposes of clarity and without limitation to any other provision of this Section 7 or elsewhere in this Agreement, the Company and each of the Agents parties hereto agree that an Agent’s the Agents’ obligations, if any, to solicit purchases of Shares on an agency basis or otherwise take any action pursuant to a Transaction Acceptance shall, unless otherwise agreed in writing by such Agentthe Agents, be suspended during the period from and including a Bring-Down Delivery Date through and including the time that such Agent the Agents shall have received the documents described in the preceding sentence.
Appears in 1 contract
Samples: Distribution Agreement (Carvana Co.)
Conditions of the Agents’ Obligations. Each Agent’s obligation to solicit purchases on an agency basis for the Shares or otherwise take any action pursuant to a Transaction Acceptance and to purchase the Shares pursuant to any Terms Agreement shall be subject to the satisfaction of the following conditions:
(a) At the Time of Acceptance, at the time of the commencement of trading on the Exchange on the Purchase Date(s) and at the relevant Time of Sale and Agency Settlement Date, or with respect to a Principal Transaction pursuant to a Terms Agreement, at the time of execution and delivery of the Terms Agreement by the Company and at the relevant Time of Sale and Principal Settlement Date:
(i) The representations, warranties and agreements on the part of the Company herein contained or contained in any certificate of an officer or officers of the Company delivered pursuant to the provisions hereof shall be true and correct in all respects.
(ii) The Company shall have performed and observed its covenants and other obligations hereunder and/or under any Terms Agreement, as the case may be, in all material respects.
(iii) In the case of an Agency Transaction, from the Time of Acceptance until the Agency Settlement Date, or, in the case of a Principal Transaction pursuant to a Terms Agreement, from the time of execution and delivery of the Terms Agreement by the Company until the Principal Settlement Date, trading in the Common Stock on the Exchange shall not have been suspended.
(iv) From the date of this Agreement, no event or condition of a type described in Section 3(e) hereof shall have occurred or shall exist, which event or condition is not described in any Permitted Free Writing Prospectus (excluding any amendment or supplement thereto) or the Prospectus (excluding any amendment or supplement thereto) and the effect of which in the reasonable judgment of the applicable Agent makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares on the applicable Settlement Date on the terms and in the manner contemplated by this Agreement, any Terms Agreement, any Permitted Free Writing Prospectus and the Prospectus.
(v) Subsequent to the relevant Time of Acceptance or, in the case of a Principal Transaction, subsequent to execution of the applicable Terms Agreement, (A) no downgrading shall have occurred in the rating accorded any debt securities or preferred equity securities of or guaranteed by the Company or any of the Subsidiaries 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 (B) 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 equity securities of or guaranteed by the Company or any of the Subsidiaries (other than an announcement with positive implications of a possible upgrading) in each case that has not been described in any Permitted Free Writing Prospectus issued prior to any related Time of Sale.
(vi) The Shares to be issued pursuant to the Transaction Acceptance or pursuant to a Terms Agreement, as applicable, shall have been approved for listing on the Exchange, subject only to notice of issuance.
(vii) (A) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the relevant Settlement Date, prevent the issuance or sale of the Shares and (B) no injunction or order of any federal, state or foreign court shall have been issued that would, as of the relevant Settlement Date, prevent the issuance or sale of the Shares.
(viii) (A) No order suspending the effectiveness of the Registration Statement shall be in effect, no proceeding for such purpose or pursuant to Section 8A of the Act shall be pending before or threatened by the Commission, and no notice of objection of the Commission to the use of the Registration Statement pursuant to Rule 401(g)(2) under the Act shall have been received by the Company; (B) the Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of any Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Act); (C) all requests by the Commission for additional information shall have been complied with to the satisfaction of the Agent; and (D) no suspension of the qualification of the Shares for offering or sale in any jurisdiction, and no initiation or threatening of any proceedings for any of such purposes, shall have occurred and be in effect. The Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading at the time an Agent delivers a Transaction Acceptance to the Company or the Company and an Agent execute a Terms Agreement, as the case may be.
(ix) No amendment or supplement to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall have been filed to which the Agent shall have reasonably objected in writing.
(b) At every Bring-Down Delivery Date, the Agents shall have received the officer’s certificates, opinions and negative assurance letters of counsel and a “comfort” letter and other documents provided for under Sections 6(b) through 6(d), inclusive. For purposes of clarity and without limitation to any other provision of this Section 7 or elsewhere in this Agreement, the Company and each of the Agents agree that an Agent’s obligations, if any, to solicit purchases of Shares on an agency basis or otherwise take any action pursuant to a Transaction Acceptance shall, unless otherwise agreed in writing by such Agent, be suspended during the period from and including a Bring-Down Delivery Date through and including the time that such Agent shall have received the documents described in the preceding sentence.
Appears in 1 contract
Conditions of the Agents’ Obligations. Each Agent’s obligation to solicit purchases on an agency basis for the Shares Units or otherwise take any action pursuant to a Transaction Acceptance and to purchase the Shares Units pursuant to any Terms Agreement shall be subject to the satisfaction of the following conditions:
(a) At the Time of Acceptance, at the time of the commencement of trading on the Exchange on the Purchase Date(s) and at the relevant Time of Sale and Agency Settlement Date, or with respect to a Principal Transaction pursuant to a Terms Agreement, at the time of execution and delivery of the Terms Agreement by the Company Partnership and at the relevant Time of Sale and Principal Settlement Date:
(i) The representations, warranties and agreements on the part of the Company Partnership and the General Partner herein contained or contained in any certificate of an officer or officers officers, general partner, managing member or other authorized representative of the Company Partnership and the General Partner or any subsidiary of the Partnership and the General Partner delivered pursuant to the provisions hereof shall be true and correct in all respects.
(ii) The Company Each of the Partnership and the General Partner shall have performed and observed its respective covenants and other obligations hereunder and/or under any Terms Agreement, as the case may be, in all material respects.
(iii) In the case of an Agency Transaction, from the Time of Acceptance until the Agency Settlement Date, or, in the case of a Principal Transaction pursuant to a Terms Agreement, from the time of execution and delivery of the Terms Agreement by the Company Partnership until the Principal Settlement Date, trading in the Common Stock Units on the Exchange shall not have been suspended.
(iv) From the date of this Agreement, no event or condition of a type described in Section 3(e3(ee) hereof shall have occurred or shall exist, which event or condition is not described in any Permitted Free Writing Prospectus (excluding any amendment or supplement thereto) or the Prospectus (excluding any amendment or supplement thereto) and the effect of which in the reasonable judgment of the applicable Agent Agents makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares Units on the applicable Settlement Date on the terms and in the manner contemplated by this Agreement, any Terms Agreement, any Permitted Free Writing Prospectus and the Prospectus.
(v) Subsequent to the relevant Time of Acceptance or, in the case of a Principal Transaction, subsequent to execution of the applicable Terms Agreement, (A) no downgrading shall have occurred in the rating accorded any debt securities or preferred equity securities of or guaranteed by the Company Partnership or any of the Subsidiaries its subsidiaries 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 (B) 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 equity securities of or guaranteed by the Company Partnership or any of the Subsidiaries its subsidiaries (other than an announcement with positive implications of a possible upgrading) in each case that has not been described in any Permitted Free Writing the Prospectus issued prior to any related Time of Sale.
(vi) The Shares Units to be issued pursuant to the Transaction Acceptance or pursuant to a Terms Agreement, as applicable, shall have been approved for listing on the Exchange, subject only to notice of issuance.
(vii) (A) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the relevant Settlement Date, prevent the issuance or sale of the Shares Units and (B) no injunction or order of any federal, state or foreign court shall have been issued that would, as of the relevant Settlement Date, prevent the issuance or sale of the SharesUnits.
(A) No order suspending the effectiveness of the Registration Statement shall be in effect, no proceeding for such purpose or pursuant to Section 8A of the Securities Act shall be pending before or threatened by the Commission, Commission and no notice of objection of the Commission to the use of the Registration Statement pursuant to Rule 401(g)(2401(g) under the Securities Act shall have been received by the CompanyPartnership; (B) the Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the Commission under the Securities Act (in the case of any Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act); (C) all requests by the Commission for additional information shall have been complied with to the satisfaction of the AgentAgents; and (D) no suspension of the qualification of the Shares Units for offering or sale in any jurisdiction, and no initiation or threatening of any proceedings for any of such purposes, shall have occurred and be in effect. The Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading at the time an Agent delivers a Transaction Acceptance to the Company Partnership or the Company Partnership and an Agent execute a Terms Agreement, as the case may be.
(ix) No amendment or supplement to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall have been filed to which the Agent Agents shall have reasonably objected in writing.
(b) At every Bring-Down Delivery Date, the Agents shall have received the officer’s certificates, opinions and negative assurance letters of counsel and a “comfort” letter and other documents provided for under Sections 6(b) through 6(d), inclusive. For purposes of clarity and without limitation to any other provision of this Section 7 or elsewhere in this Agreement, the Company and each of the Agents agree that an Agent’s obligations, if any, to solicit purchases of Shares on an agency basis or otherwise take any action pursuant to a Transaction Acceptance shall, unless otherwise agreed in writing by such Agent, be suspended during the period from and including a Bring-Down Delivery Date through and including the time that such Agent shall have received the documents described in the preceding sentence.
Appears in 1 contract
Samples: Distribution Agreement (MPLX Lp)
Conditions of the Agents’ Obligations. Each Agent’s obligation to solicit purchases on an agency basis for the Shares Units or otherwise take any action pursuant to a Transaction Acceptance and to purchase the Shares Units pursuant to any Terms Agreement shall be subject to the satisfaction of the following conditions:.
(a) At the Time of Acceptance, at the time of the commencement of trading on the Exchange on the Purchase Date(s) and at the relevant Time of Sale and Agency Settlement Date, or with respect to a Principal Transaction pursuant to a Terms Agreement, at the time of execution and delivery of the Terms Agreement by the Company Partnership and at the relevant Time of Sale and Principal Settlement Date:
(i) The representations, representations and warranties and agreements on the part of the Company Partnership and the General Partner herein contained or contained in any certificate of an officer or officers officers, general partner, managing member or other authorized representative of the Company Partnership and the General Partner or any subsidiary of the Partnership and the General Partner delivered pursuant to the provisions hereof shall be true and correct in all respects; it being understood that (A) such representations and warranties made as of a specific date need only be true and accurate as of such date, (B) such representations and warranties shall relate to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus as amended and supplemented to the time of such Transaction Acceptance or Terms Agreement as the case may be and (C) such representations and warranties incorporate any modifications to the representations and warranties set forth in Sections 3(d), 3(e) and 3(f) hereof that have arisen in the ordinary course of business and as otherwise would not be reasonably likely to result in a Material Adverse Effect, provided that such modifications are described in the Registration Statement or Prospectus, including Incorporated Documents filed after the date of this Agreement, or the Partnership shall have otherwise provided, or caused to be provided, information relating to such modifications to each of the Agents, or their agents, as part of the due diligence provided for under this Agreement.
(ii) The Company Each of the Partnership and the General Partner shall have performed and observed its respective covenants and other obligations hereunder and/or under any Terms Agreement, as the case may be, in all material respects.
(iii) In the case of an Agency Transaction, from the Time of Acceptance until the Agency Settlement Date, or, Trading in the case of a Principal Transaction pursuant to a Terms Agreement, from the time of execution and delivery of the Terms Agreement by the Company until the Principal Settlement Date, trading in the Common Stock Units on the Exchange shall not have been suspended.
(iv) From the date of this Agreement, no event or condition of a type described in Section 3(e3(u) hereof shall have occurred or shall exist, which event or condition is not described in any Permitted Free Writing Prospectus (excluding any amendment or supplement thereto) or the Prospectus (excluding any amendment or supplement thereto) and the effect of which in the reasonable judgment of the applicable Agent Agents makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares Units on the applicable Settlement Date on the terms and in the manner matter contemplated by this Agreement, any Terms Agreement, any Permitted Free Writing Prospectus and the Prospectus.
(v) Subsequent to the relevant Time of Acceptance or, in the case of a Principal Transaction, subsequent to execution of the applicable Terms Agreement, (A) no downgrading shall have occurred in the rating accorded any debt securities or preferred equity securities of or guaranteed by the Company or any of the Subsidiaries 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 (B) 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 equity securities of or guaranteed by the Company or any of the Subsidiaries (other than an announcement with positive implications of a possible upgrading) in each case that has not been described in any Permitted Free Writing Prospectus issued prior to any related Time of Sale.
(vi) The Shares Units to be issued pursuant to the Transaction Acceptance or pursuant to a Terms Agreement, as applicable, shall have been approved for listing on the Exchange, subject only to notice of issuance.
(viivi) (A) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the relevant Settlement Date, prevent the issuance or sale of the Shares Units and (B) no injunction or order of any federal, state or foreign court shall have been issued that would, as of the relevant Settlement Date, prevent the issuance or sale of the SharesUnits.
(vii) (A) No order suspending the effectiveness of the Registration Statement shall be in effect, no proceeding for such purpose or pursuant to Section 8A of the Securities Act shall be pending before or threatened by the Commission, Commission and no notice of objection of the Commission to the use of the Registration Statement pursuant to Rule 401(g)(2401(g) under the Securities Act shall have been received by the CompanyPartnership; (B) the Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the Commission under the Securities Act (in the case of any Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act); (C) all requests by the Commission for additional information shall have been complied with to the satisfaction of the AgentAgents; and (D) no suspension of the qualification of the Shares Units for offering or sale in any jurisdiction, and no initiation or threatening of any proceedings for any of such purposes, shall have occurred and be in effect. The Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading at the time an Agent delivers a Transaction Acceptance to the Company Partnership or the Company Partnership and an Agent execute a Terms Agreement, as the case may be.
(ixviii) No amendment or supplement to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall have been filed to which the Agent Agents shall have reasonably objected in writing.
(b) At every Subsequent to the relevant Time of Acceptance or, in the case of a Principal Transaction, subsequent to execution of the applicable Terms Agreement, (A) no downgrading shall have occurred in the rating accorded any debt securities or preferred equity securities of or guaranteed by the Partnership or any of its subsidiaries 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 (B) 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 equity securities of or guaranteed by the Partnership or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading) in each case that has not been described in the Prospectus prior to any related Time of Sale.
(c) Within one Exchange Business Day after the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, on such Principal Settlement Date, the Agents shall have received the officer’s certificates, opinions and negative assurance letters of counsel and a “comfort” letter letters and other documents provided for required under Sections 6(b6(a) through 6(d(d), inclusive. For purposes of clarity and without limitation to any other provision of this Section 7 or elsewhere in this Agreement, the Company and each of the Agents parties hereto agree that an Agent’s the Agents’ obligations, if any, to solicit purchases of Shares Units on an agency basis or otherwise take any action pursuant to a Transaction Acceptance shall, unless otherwise agreed in writing by such Agentthe Agents, be suspended during the period from and including a Bring-Down Delivery Date through and including the time that such Agent the Agents shall have received the documents described in the preceding sentence.
Appears in 1 contract
Samples: Distribution Agreement (MPLX Lp)
Conditions of the Agents’ Obligations. Each Agent’s The obligation of the Agent to solicit purchases sell the Notes on an agency a best efforts basis for the Shares or otherwise take any action pursuant to a Transaction Acceptance and to purchase the Shares pursuant to any Terms Agreement as provided herein shall be subject to the accuracy of the representations and warranties of the Company, in the case of the Notes, as of the date hereof, to the performance by the Company of its obligations hereunder, and to the satisfaction of the following additional conditions:
(a) At the Time of Acceptance, at the time of the commencement of trading on the Exchange on the Purchase Date(s) and at the relevant Time of Sale and Agency Settlement Date, or with respect to a Principal Transaction pursuant to a Terms Agreement, at the time of execution and delivery of the Terms Agreement by the Company and at the relevant Time of Sale and Principal Settlement Date:
(i) The representations, warranties and agreements on the part of the Company herein contained or contained in any certificate of an officer or officers of the Company delivered pursuant to the provisions hereof shall be true and correct in all respects.
(ii) The Company Registration Statement shall have performed and observed its covenants and other obligations hereunder and/or under any Terms Agreementbecome effective not later than 4:00 p.m. Minneapolis, as the case may be, in all material respects.
(iii) In the case of an Agency Transaction, from the Time of Acceptance until the Agency Settlement Date, or, in the case of a Principal Transaction pursuant to a Terms Agreement, from the Minnesota time of execution and delivery of the Terms Agreement by the Company until the Principal Settlement Date, trading in the Common Stock on the Exchange shall not have been suspended.
(iv) From the date of this Agreement, no event or condition of a type described such later date or time as shall be consented to in Section 3(e) hereof shall have occurred or shall existwriting by Agent (the "Effective Date"), which event or condition is not described in any Permitted Free Writing Prospectus (excluding any amendment or supplement thereto) or the Prospectus (excluding any amendment or supplement thereto) and the effect of which in the reasonable judgment of the applicable Agent makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares on the applicable Settlement Date on the terms and in the manner contemplated by this Agreement, any Terms Agreement, any Permitted Free Writing Prospectus and the Prospectus.
(v) Subsequent to the relevant Time of Acceptance or, in the case of a Principal Transaction, subsequent to execution of the applicable Terms Agreement, (A) no downgrading shall have occurred in the rating accorded any debt securities or preferred equity securities of or guaranteed by the Company or any of the Subsidiaries 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 (B) 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 equity securities of or guaranteed by the Company or any of the Subsidiaries (other than an announcement with positive implications of a possible upgrading) in each case that has not been described in any Permitted Free Writing Prospectus issued prior to any related Time of Sale.
(vi) The Shares to be issued pursuant to the Transaction Acceptance or pursuant to a Terms Agreement, as applicable, shall have been approved for listing on the Exchange, subject only to notice of issuance.
(vii) (A) No action shall have been taken and no statute, rule, regulation or stop order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of suspending the relevant Settlement Date, prevent the issuance or sale of the Shares and (B) no injunction or order of any federal, state or foreign court effectiveness thereof shall have been issued and no proceedings for that wouldpurpose shall have been initiated or, as to the knowledge of the relevant Settlement DateCompany, prevent or the issuance or sale of the Shares.
(A) No order suspending the effectiveness of the Registration Statement shall be in effectAgent, no proceeding for such purpose or pursuant to Section 8A of the Act shall be pending before or threatened by the Commission, and no notice Commission or any state securities commission or similar regulatory body. Any request of objection of the Commission to the use of the Registration Statement pursuant to Rule 401(g)(2) under the Act shall have been received by the Company; (B) the Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of any Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Act); (C) all requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of the Agent and Agent; 's counsel.
(b) The Agent shall not have advised the Company that the Registration Statement or Prospectus, or any amendment thereof or supplement thereto, contains any untrue statement of a fact which is material or omits to state a fact which is material and is required to be stated therein or is necessary to make the statements contained therein, in light of the circumstances under which they were made, not misleading.
(c) Subsequent to the Effective Date and prior to termination of the Offering, there shall not have occurred any change, or any development involving a prospective change, which materially and adversely affects the Company's condition (financial or otherwise), earnings, operations, properties, business or business prospects from that set forth in the Registration Statement or Prospectus, and which is material and adverse or that makes it impracticable or inadvisable to proceed with the Offering of the Notes as contemplated by the Prospectus and this Agreement.
(d) All corporate proceedings and other legal matters in connection with this Agreement, the form of Registration Statement and the Prospectus, and the registration, authorization, issue, sale and delivery of the Notes shall have been reasonably satisfactory to Agent's counsel, in all material respects, and Agent's counsel shall have been furnished with such papers and information as it may reasonably have requested to enable it to pass upon the matters referred to in this Section.
(e) The Agent shall have received the opinion of Andrews & Kurth, L.L.P., counsel for the Company, dated as of thx Xxxxxal Xxxxxng Date, satisfactory in form and substance to the Agent and Agent's counsel, which includes the opinions as set forth in Exhibit ___ attached hereto. Andrews & Kurth, L.L.P., in rendering the foregoing opinion, may xxxx xs to xxxstions of law not involving the laws of the United States or the State of New York upon opinions of local counsel, and, as to questions of fact, upon representations or certificates of officers of the Company and of government officials, in which case its opinion is to state such reliance. Copies of any opinion, representation or certificate so relied upon shall be delivered to the Agent and to Agent's counsel.
(f) At the time of execution of this Agreement, the Agent shall have received from PricewaterhouseCoopers LLP a letter dated the date of such execution, in form and substance satisfactory to the Agent, to the effect that they are independent accountants with respect to the Company within the meaning of the Securities Act and the applicable published instructions, and the Rules and Regulations thereunder, and further stating in effect that, in their opinion, the audited financial statements incorporated by reference in the Registration Statement and Prospectus covered by their report included therein comply as to form in all material respects with the applicable requirements of the Securities Act, the published instructions and the Rule and Regulations.
(g) At the time of execution of this Agreement, the Agent shall have received from PricewaterhouseCoopers LLP a letter dated the date of such execution, in form and substance satisfactory to the Agent, that:
(i) On the basis of (1) a reading of the minutes of the stockholders' and directors' meetings of the Company, (2) inquiries of certain officials of the Company responsible for financial and accounting matters, (3) a reading of the Company's monthly operating statements for the months beginning on ___________, ____, and (D4) no suspension other specified procedures and inquiries (but not an audit in accordance with generally accepted accounting principles), nothing came to their attention causing them to believe that:
(A) the unaudited financial statements of the Company incorporated by reference in the Prospectus and any amendment thereof or supplement thereto do not comply as to form, in all material respects, with the applicable accounting requirements of the Securities Act and the published Rules and Regulations or were not prepared in conformity with generally accepted accounting principles and practices applied on a basis consistent in all material respects with those followed in the preparation of the audited financial statements of the Company included therein;
(B) the unaudited amounts of revenues, income before provision for income taxes, net income and ratio of earnings to fixed charges of the Company incorporated by reference in the Prospectus, or any amendment thereof or supplement thereto, were not derived from financial statements prepared in conformity with generally accepted accounting principles and practices applied on a basis consistent in all material respects with those followed in the preparation of the audited financial statements of the Company included therein; or
(C) with respect to the period subsequent to _________, ______, there were, at a specified date, not more than five business days prior to the date of the letter, any changes or any material increases or decreases in capital stock, long-term or short-term debt or stockholders' equity, decreases in net assets, net current assets, or net worth or any material decrease, as compared with the corresponding period of the prior year, in revenues or net income of the Company as compared with the amounts shown in the balance sheet included in the Registration Statement, except as disclosed or referred to in the Prospectus and Registration Statement.
(ii) Certain information and data regarding the Company and its operations set forth in the Prospectus that are expressed in dollars (or percentages derived from dollar amounts) or numbers have been compared to accounting records of the Company which were subject to the internal accounting controls of the Company and are in agreement with such records or computations made therefrom, excluding any questions of legal interpretation.
(h) The Agent shall have received from the Company a certificate, dated as of the Initial Closing Date, of the principal executive officer and the principal financial or accounting officer of the Company, to the effect that:
(i) The representations and warranties of the Company in this Agreement are true and correct as if made on and as of the date of the certificate, and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied under this Agreement.
(ii) No stop order or other order suspending the effectiveness of the Registration Statement or any amendment thereof or the qualification of the Shares Notes for offering or sale in any jurisdictionhave been issued, and no initiation or threatening of any proceedings for that purpose have been instituted or, to the best of their knowledge, are contemplated by the Commission or any state or regulatory body.
(iii) The signers of such purposes, shall said certificate have occurred carefully examined the Registration Statement and the Prospectus and any amendments thereof or supplements thereto.
(iv) Such documents contain all statements and information required to be in effect. The included therein; the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall amendment thereof, does not contain an any untrue statement of a material fact or omit to state a any material fact required to be stated therein or necessary to make the statements therein not misleading; and the Prospectus, as amended or supplemented, does not include any untrue statement of material fact or omit to state a material fact necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading at the time an Agent delivers a Transaction Acceptance to the Company or the Company and an Agent execute a Terms Agreement, as the case may bemisleading.
(ixv) No amendment There has occurred no event required to be set forth in an amended or supplement supplemented Prospectus which has not been so set forth.
(vi) Subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, the Company has not incurred any material liabilities or material obligations, direct or contingent, or entered into any Material Agreements, not in the ordinary course of business consistent with past practice, and except as disclosed in the financial statements incorporated by reference in the Registration Statement, there has not been any material change in the Prospectus capital stock, or any Permitted Free Writing Prospectus shall have been filed material increase in the short-term debt or long-term debt, or in the issuance of options, warrants, convertible securities or other rights to purchase the capital stock, of the Company, or any material adverse change or any development involving a prospective material adverse change (whether or not arising in the ordinary course of business) in the general affairs, condition (financial or otherwise), business, key personnel, property, prospects, net worth or results of operations of the Company.
(vii) Except as stated in the Registration Statement and Prospectus, there is not pending or, to their knowledge, threatened or contemplated, any action, suit or proceeding to which the Company is a party before or by any court or governmental agency, authority or body, or any arbitrator, which might result in any material adverse change of the condition, (financial or otherwise), business, prospects, or results of operations of the Company.
(i) The Agent shall have reasonably objected received a certificate of Secretary of the Company, dated as of such Initial Closing Date, with the documents listed herein attached, and to the effect and certifying as follows:
(i) Attached thereto are true and correct copies of the certificate of incorporation of the Company, as amended to the date of the certificate, and stating that there have been no changes or amendments to the attached certificate of incorporation of the Company, and no resolutions have been adopted by the Board of Directors or stockholders of the Company relating to (A) the amendment of said certificate of incorporation; (B) the merger, consolidation or dissolution of the Company; or (C) the sale of all or substantially all of the assets or business of the Company, and that the Company is in writinggood standing in the State of Delaware and has paid all of its corporate franchise taxes due as of the date of such certificate.
(bii) At every Bring-Down Delivery Date, Attached thereto is a true and correct copy of the Agents shall bylaws of the Company as in effect as of the date of such certificate and no resolutions have received been adopted by the officer’s certificates, opinions Board of Directors or stockholders of the Company relating to changes or amendments to the attached bylaws.
(iii) Attached thereto are true and negative assurance letters correct copies of counsel the resolutions of the Board of Directors of the Company relating to the preparation and a “comfort” letter signing of the Registration Statement and other documents provided for under Sections 6(b) through 6(d), inclusive. For purposes of clarity and without limitation to any other provision of this Section 7 or elsewhere in this Agreement, the issuance and sale of the Notes and other related matters, and such resolutions have not been amended, modified or rescinded and are in full force and effect as of the date of such certificate and are the only resolutions adopted by the Board of Directors of the Company with respect to the offering contemplated by the Registration Statement.
(iv) The persons who have signed the Registration Statement and all amendments thereto were duly elected at the respective times of such signing and duly acting as officers and directors of the Company or as an attorney-in-fact therefor, as set forth in the Registration Statement.
(j) Leonard, Street and Deinard Professional Association, shall delixxx xx the Agent a Blue Sky Memorandum reasonably satisfactory to the Agent confirming that all requisite actions for the offer and sale of the Notes in all jurisdictions requested by the Agent have been taken.
(k) The Company shall have furnished to the Agent and to Agent's Counsel such additional certificates, documents and evidence as the Agent shall reasonably request. All such opinions, certificates, letters and documents will be in compliance with the provisions hereof only if they are reasonably satisfactory to the Agent and Agent's counsel. All statements contained in any certificate, letter or other document delivered pursuant hereto by, or on behalf of, the Company shall be deemed to constitute representations and warranties of the Company. The Agent may waive in writing the performance of any one or more of the conditions specified in this Section or extend the time for their performance. If any of the conditions specified in this Section shall not have been fulfilled when and as required by this Agreement to be fulfilled and if the fulfillment of said condition has not been waived by the Agent, this Agreement and all obligations of the Agent hereunder may be canceled at, or at any time prior to, the Initial Closing Date by the Agent. Any such reasonable cancellation shall be without liability of the Agent to the Company and each shall not relieve the Company of its obligations under Article VII hereof. Notice of such cancellation shall be given to the Agents agree that an Agent’s obligations, if any, to solicit purchases of Shares on an agency basis or otherwise take any action pursuant to a Transaction Acceptance shall, unless otherwise agreed Company as specified in writing by such Agent, be suspended during the period from and including a Bring-Down Delivery Date through and including the time that such Agent shall have received the documents described in the preceding sentenceSection 8.03.
Appears in 1 contract
Samples: Distribution and Management Agreement (Onyx Acceptance Corp)
Conditions of the Agents’ Obligations. Each Agent’s obligation to solicit purchases on an agency basis for the Shares Units or otherwise take any action pursuant to a Transaction Acceptance and to purchase the Shares Units pursuant to any Terms Agreement shall be subject to the satisfaction of the following conditions:. For the avoidance of doubt, the failure of the Selling Unitholder to deliver, or cause to be delivered, any required certificates or opinions called for in this Agreement shall not prevent the Partnership from issuing Primary Units pursuant to this Agreement.
(a) At the Time of Acceptance, at the time of the commencement of trading on the Exchange on the Purchase Date(s) and at the relevant Time of Sale and Agency Settlement Date, or with respect to a Principal Transaction pursuant to a Terms Agreement, at the time of execution and delivery of the Terms Agreement by the Company Partnership, Custodian and Selling Unitholder, as applicable, and at the relevant Time of Sale and Principal Settlement Date:
(i) The representations, warranties and agreements on the part of the Company Partnership and the General Partner herein contained or contained in any certificate of an officer or officers officers, general partner, managing member or other authorized representative of the Company Partnership and the General Partner or any subsidiary of the Partnership and the General Partner delivered pursuant to the provisions hereof shall be true and correct in all respects; it being further understood that such representations, warranties and agreements incorporate any modifications to the representations, warranties and agreements set forth in Sections 3(d), 3(e), 3(i) through (q), and 3(ff) hereof that have arisen in the ordinary course of business and as otherwise would not be reasonably likely to result in a Material Adverse Effect, provided that the Partnership shall have provided, or caused to be provided, information relating to such modifications to each of the Agents, or their agents, as part of the due diligence provided for under this Agreement.
(ii) The Company representations, warranties and agreements on the part of the Selling Unitholder herein contained or contained in any certificate of an officer or officers, general partner, managing member or other authorized representative of the Selling Unitholder delivered pursuant to the provisions hereof shall be true and correct in all respects; it being further understood that such representations, warranties and agreements incorporate any modifications to the representations, warranties and agreements set forth in Section 4 hereof that have arisen in the ordinary course of business and as otherwise would not be reasonably likely to result in a Material Adverse Effect, provided that the Selling Unitholder shall have provided, or caused to be provided, information relating to such modifications to each of the Agents, or their agents, as part of the due diligence provided for under this Agreement.
(iii) Each of the Partnership and the General Partner and Selling Unitholder shall have performed and observed its respective covenants and other obligations hereunder and/or under any Terms Agreement, as the case may be, in all material respects.
(iiiiv) In the case of an Agency Transaction, from the Time of Acceptance until the Agency Settlement Date, or, in the case of a Principal Transaction pursuant to a Terms Agreement, from the time of execution and delivery of the Terms Agreement by the Company Partnership, Custodian and Selling Unitholder, as applicable, until the Principal Settlement Date, trading in the Common Stock Units on the Exchange shall not have been suspended.
(ivv) From the date of this Agreement, no event or condition of a type described in Section 3(e3(nn) hereof shall have occurred or shall exist, which event or condition is not described in any Permitted Free Writing Prospectus (excluding any amendment or supplement thereto) or the Prospectus (excluding any amendment or supplement thereto) and the effect of which in the reasonable judgment of the applicable Agent Agents makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares Units on the applicable Settlement Date on the terms and in the manner contemplated by this Agreement, any Terms Agreement, any Permitted Free Writing Prospectus and the Prospectus.
(vvi) Subsequent to the relevant Time of Acceptance or, in the case of a Principal Transaction, subsequent to execution of the applicable Terms Agreement, (A) no downgrading shall have occurred in the rating accorded any debt securities or preferred equity securities of or guaranteed by the Company Partnership or any of the Subsidiaries its subsidiaries 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 (B) 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 equity securities of or guaranteed by the Company Partnership or any of the Subsidiaries its subsidiaries (other than an announcement with positive implications of a possible upgrading) in each case that has not been described in any Permitted Free Writing the Prospectus issued prior to any related Time of Sale.
(vivii) The Shares Primary Units to be issued pursuant to the Transaction Acceptance or pursuant to a Terms Agreement, as applicable, shall have been approved for listing on the Exchange, subject only to notice of issuance.
(viiviii) (A) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the relevant Settlement Date, prevent the issuance or sale of the Shares Primary Units or sale of the Secondary Units and (B) no injunction or order of any federal, state or foreign court shall have been issued that would, as of the relevant Settlement Date, prevent the issuance or sale of the SharesPrimary Units or sale of the Secondary Units.
(ix) (A) No order suspending the effectiveness of the Partnership Registration Statement or Selling Unitholder Registration Statement, as applicable, shall be in effect, no proceeding for such purpose or pursuant to Section 8A of the Securities Act shall be pending before or threatened by the Commission, Commission and no notice of objection of the Commission to the use of the Partnership Registration Statement or Selling Unitholder Registration Statement, as applicable, pursuant to Rule 401(g)(2401(g) under the Securities Act shall have been received by the CompanyPartnership; (B) the Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the Commission under the Securities Act (in the case of any Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act); (C) all requests by the Commission for additional information shall have been complied with to the satisfaction of the AgentAgents; and (D) no suspension of the qualification of the Shares Units for offering or sale in any jurisdiction, and no initiation or threatening of any proceedings for any of such purposes, shall have occurred and be in effect. The Registration StatementStatements, the Prospectus or any Permitted Free Writing Prospectus shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading at the time an Agent delivers a Transaction Acceptance to the Company Partnership and Custodian or the Company Partnership or Custodian and an Agent execute a Terms Agreement, as the case may be.
(ixx) No amendment or supplement to the Registration StatementStatements, the Prospectus or any Permitted Free Writing Prospectus shall have been filed to which the Agent Agents shall have reasonably objected in writing.
(b) At every Bring-Down Delivery Date, the Agents shall have received the officer’s certificates, opinions and negative assurance letters of counsel and a “comfort” letter and other documents provided for under Sections 6(b) through 6(d), inclusive. For purposes of clarity and without limitation to any other provision of this Section 7 or elsewhere in this Agreement, the Company and each of the Agents agree that an Agent’s obligations, if any, to solicit purchases of Shares on an agency basis or otherwise take any action pursuant to a Transaction Acceptance shall, unless otherwise agreed in writing by such Agent, be suspended during the period from and including a Bring-Down Delivery Date through and including the time that such Agent shall have received the documents described in the preceding sentence.
Appears in 1 contract
Samples: Distribution Agreement (MPLX Lp)
