Conditions of the Sales Manager’s Obligations. The obligations of the Sales Manager to sell Common Shares are subject to the accuracy on the date of this Sales Agreement, and as of each Settlement Date, of the representations of the Fund and the Investment Adviser in this Sales Agreement, to the accuracy and completeness of all material statements made by the Fund and the Investment Adviser or any of their respective officers in any certificate delivered to the Sales Manager or its counsel pursuant to this Sales Agreement, to performance by the Fund and the Investment Adviser of their respective obligations under this Sales Agreement and to each of the following additional conditions: (a) The Registration Statement must have become effective. The Prospectus must have been filed in accordance with Rule 497(b) or (h) or a certificate must have been filed in accordance with Rule 497(j), as the case may be, under the Securities Act. (b) No order suspending the effectiveness of the Registration Statement may be in effect and no proceedings for such purpose may be pending before or, to the knowledge of counsel to the Sales Manager, threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) must be complied with or waived to the reasonable satisfaction of the Sales Manager. (c) Since the dates as of which information is given in the Registration Statement and the Prospectus, (i) there must not have been any material change in the Common Shares except as set forth in or contemplated by the Prospectus; (ii) there must not have been any material adverse change in the general affairs, prospects, management, business, financial condition or results of operations of the Fund or the Investment Adviser whether or not arising from transactions in the ordinary course of business as set forth in or contemplated by the Prospectus; (iii) the Fund must not have sustained any material loss or interference with its business from any court or from legislative or other governmental action, order or decree, whether foreign or domestic, or from any other occurrence not described in the Registration Statement and the Prospectus; and (iv) there must not have occurred any event that makes untrue or incorrect in any material respect any statement or information contained in the Registration Statement or the Prospectus or that is not reflected in the Registration Statement or the Prospectus but should be reflected therein in order to make the statements or information therein (in the case of the Prospectus, in light of the circumstances in which they were made) not misleading in any material respect; if, in the judgment of the Sales Manager, any such development referred to in clause (i), (ii), (iii), or (iv) of this paragraph (c) makes it impracticable or inadvisable to consummate the sale and delivery of the Common Shares pursuant to this Sales Agreement at the then current market price of the Common Shares. (d) Unless otherwise agreed to by the Sales Manager, the Sales Manager must have received as of each Settlement Date a certificate, dated such date, of the President or a Vice-President and the chief financial or accounting officer of each of the Fund and the Investment Adviser certifying (in their capacity as such officers and, with respect to clauses (ii), (iii) and (vi) below, on behalf of the Fund and the Investment Adviser, as the case may be) that (i) the signers have carefully examined the Registration Statement, the Prospectus and this Sales Agreement, (ii) the representations of the Fund (with respect to the certificates from such Fund officers) and the representations of the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) in this Sales Agreement are accurate on and as of the date of the certificate, (iii) there has not been any material adverse change in the general affairs, prospects, management, business, financial condition or results of operations of the Fund (with respect to the certificates from such Fund officers) or the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser), which change would materially and adversely affect the ability of the Fund or the Investment Adviser, as the case may be, to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement (with respect to the certificates from such officers of the Investment Adviser), whether or not arising from transactions in the ordinary course of business, (iv) with respect to the Fund only, no order suspending the effectiveness of the Registration Statement, prohibiting the sale of any of the Common Shares or otherwise having a material adverse effect on the Fund has been issued and no proceedings for any such purpose are pending before or, to the knowledge of such officers after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic, (v) no order having a material adverse effect on the ability of the Investment Adviser to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement, as the case may be, has been issued and no proceedings for any such purpose are pending before or, to the knowledge of the officers of the Investment Adviser after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic and (vi) each of the Fund (with respect to the certificates from such Fund officers) and the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) has performed all of its respective agreements that this Sales Agreement requires it to perform by such Settlement Date (to the extent not waived in writing by the Sales Manager). (e) Unless otherwise agreed to by the Sales Manager, the Sales Manager must have received as of the date of this Sales Agreement and each time referred to in Section 4(m) the opinions dated as of the date thereof substantially in the form of Schedules A and B to this Sales Agreement (modified in the case of times referred to in Section 4(m) as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to that date) from the counsel identified in each such Schedule. (f) Unless otherwise agreed to by the Sales Manager, the Sales Manager must have received as of the date of this Sales Agreement and each time referred to in Section 4(m) from its counsel an opinion dated as of the date thereof with respect to the Fund, the Common Shares, the Registration Statement and the Prospectus, this Sales Agreement and the form and sufficiency of all proceedings taken in connection with the sale and delivery of the Common Shares. Such opinion and proceedings shall fulfill the requirements of this Section 5(f) only if such opinion and proceedings are satisfactory in all respects to the Sales Manager. The Fund and the Investment Adviser must have furnished to such counsel such documents as counsel may reasonably request for the purpose of enabling them to render such opinion. (g) Unless otherwise agreed to by the Sales Manager, the Sales Manager must have received on the date of this Sales Agreement a signed letter, dated such date, substantially in the form of Schedule C to this Sales Agreement from the independent registered public accounting firm designated in such Schedule. The Sales Manager also must have received as of each time referred to in Section 4(n) a signed letter from such accountants, dated as of the date thereof, confirming on the basis of a review in accordance with the procedures set forth in their earlier letter that nothing has come to their attention during the period from a date not more than five business days before the date of this Sales Agreement, specified in the letter, to a date not more than five business days before such time, that would require any change in their letter referred to in the foregoing sentence. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Sales Agreement will comply only if they are in form and scope reasonably satisfactory to counsel for the Sales Manager, provided that any such documents, forms of which are annexed hereto, shall be deemed satisfactory to such counsel if substantially in such form.
Appears in 5 contracts
Samples: Sales Agreement (GAMCO Global Gold, Natural Resources & Income Trust), Sales Agreement (GAMCO Global Gold, Natural Resources & Income Trust), Sales Agreement (GAMCO Global Gold, Natural Resources & Income Trust by Gabelli)
Conditions of the Sales Manager’s Obligations. 4.1 The obligations of the Sales Manager to sell Common Shares are the Company Equity Securities as provided herein shall be subject to the accuracy on accuracy, as of the date of this Sales Agreementhereof, and as of each Settlement DateDate contemplated under this Agreement, of the representations and warranties of the Fund and the Investment Adviser in this Sales AgreementCompany herein, to the accuracy and completeness of all material statements made by the Fund and the Investment Adviser or any of their respective officers in any certificate delivered to the Sales Manager or its counsel pursuant to this Sales Agreement, to performance by the Fund and the Investment Adviser Company of their respective its obligations under this Sales Agreement hereunder and to each of the following additional conditions:
(a) The Registration Statement must have become has been declared effective. The Prospectus must have been filed in accordance with Rule 497(b) or (h) or a certificate must have been filed in accordance with Rule 497(j), as the case may be, under the Securities Act.
(b) No stop order suspending the effectiveness of the Registration Statement may be in effect shall have been issued and no proceedings proceeding for such that purpose may be pending before shall have been instituted or, to the knowledge of counsel to the Company or the Sales Manager, threatened by the Commission, and any requests request of the Commission for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) must be shall have been complied with or waived to the Sales Manager’s reasonable satisfaction of satisfaction. The Company Equity Securities shall have been listed for trading on the Trading Market.
(b) The Sales Manager shall not have advised the Company that the disclosures in the Registration Statement or the Prospectus, or any amendment or supplement thereto, are not reasonably acceptable to the Sales Manager.
(c) Since Except as contemplated in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there must not have been any material change in the Common Shares except as set forth in or contemplated by the Prospectus; (ii) there must shall not have been any material adverse change in the general affairscapital stock of the Company, prospectsor any material adverse change, managementor any development that may reasonably be expected to cause a material adverse change, in the condition (financial or other), business, financial condition net worth or results of operations of the Fund Company, or the Investment Adviser whether or not arising from transactions any adverse change in the ordinary course of business as set forth in or contemplated by the Prospectus; (iii) the Fund must not have sustained rating assigned to any material loss or interference with its business from any court or from legislative or other governmental action, order or decree, whether foreign or domestic, or from any other occurrence not described in the Registration Statement and the Prospectus; and (iv) there must not have occurred any event that makes untrue or incorrect in any material respect any statement or information contained in the Registration Statement or the Prospectus or that is not reflected in the Registration Statement or the Prospectus but should be reflected therein in order to make the statements or information therein (in the case securities of the ProspectusCompany.
(i) The Sales Manager shall have received at the date of the first sale of Company Equity Securities hereunder (the “Commencement Date”) and at every other date specified in Section 3.1(n) hereof, opinions of Company Counsel, dated as of the Commencement Date and dated as of such other date, in light of the circumstances in which they were made) not misleading in any material respect; if, in the judgment of a form reasonably acceptable to the Sales Manager, any such development referred to in clause (i), (ii), (iii), or (iv) of this paragraph (c) makes it impracticable or inadvisable to consummate the sale and delivery of the Common Shares pursuant to this Sales Agreement at the then current market price of the Common Shares.
(dii) Unless otherwise agreed to by The Sales Manager shall have received a letter from Company Counsel authorizing the Sales ManagerManager to rely on the opinion on tax matters delivered by Company Counsel as Exhibit 8.1 to the Registration Statement.
(e) At the Commencement Date and at such other dates specified in Section 3.1(o) hereof, the Sales Manager must shall have received as a “comfort letter” from Ernst & Young LLP, independent public accountants for the Company, or other independent accountants then retained by the Company, dated the date of each Settlement Date delivery thereof, in form and substance satisfactory to the Sales Manager.
(f) The Sales Manager shall have received from the Company a certificate, dated such dateor certificates, signed by the Chief Financial Officer and Executive Vice President of the President or a Vice-President Company, dated as of the Commencement Date and (unless the chief financial or accounting officer Company is not then selling Company Equity Securities through the Sales Manager and has not requested the Sales Manager to sell Company Equity Securities) dated as of the first business day of each calendar month thereafter and such other times as the Sales Manager shall request (each, a “Certificate Date”), to the effect that, to the best of their knowledge based upon reasonable investigation:
(i) The representations and warranties of the Fund Company in this Agreement are true and the Investment Adviser certifying (in their capacity correct, as such officers and, with respect to clauses (ii), (iii) if made at and (vi) below, on behalf as of the Fund and Commencement Date or the Investment Adviser, Certificate Date (as the case may be) that ), and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Commencement Date and each such Certificate Date (i) as the signers have carefully examined the Registration Statement, the Prospectus and this Sales Agreement, case may be);
(ii) No stop order suspending the representations effectiveness of the Fund (with respect Registration Statement has been issued, and no proceeding for that purpose has been instituted or, to the certificates from knowledge of such Fund officersofficer after due inquiry, is threatened, by the Commission;
(iii) and the representations of the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) in this Sales Agreement are accurate on and as of Since the date of this Agreement there has occurred no event required to be set forth in an amendment or supplement to the certificateRegistration Statement or Prospectus that has not been so set forth and there has been no document required to be filed under the Exchange Act and the rules and regulations of the Commission thereunder that upon such filing would be deemed to be incorporated by reference in the Prospectus that has not been so filed; and
(iv) Since the date of this Agreement, (iii) there has not been any material adverse change in the general affairs, prospects, managementassets or properties, business, financial condition or results of operations or condition (financial or otherwise) of the Fund (with respect Company, which has not been described in an amendment or supplement to the certificates from such Fund officers) Registration Statement or the Investment Adviser Prospectus (with respect to the certificates from such officers of the Investment Adviser), which change would materially and adversely affect the ability of the Fund directly or the Investment Adviser, as the case may be, to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement (with respect to the certificates from such officers of the Investment Adviser), whether or not arising from transactions in the ordinary course of business, (iv) with respect to the Fund only, no order suspending the effectiveness of the Registration Statement, prohibiting the sale of any of the Common Shares or otherwise having a material adverse effect on the Fund has been issued and no proceedings for any such purpose are pending before or, to the knowledge of such officers after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic, (v) no order having a material adverse effect on the ability of the Investment Adviser to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement, as the case may be, has been issued and no proceedings for any such purpose are pending before or, to the knowledge of the officers of the Investment Adviser after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic and (vi) each of the Fund (with respect to the certificates from such Fund officers) and the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) has performed all of its respective agreements that this Sales Agreement requires it to perform by such Settlement Date (to the extent not waived in writing by the Sales Managerincorporation).
(eg) Unless otherwise agreed At the Commencement Date and on each Settlement Date, the Company shall have furnished to by the Sales Manager, the Sales Manager must have received such appropriate further information, certificates and documents as of the date of this Sales Agreement and each time referred to in Section 4(m) the opinions dated as of the date thereof substantially in the form of Schedules A and B to this Sales Agreement (modified in the case of times referred to in Section 4(m) as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to that date) from the counsel identified in each such ScheduleManager may reasonably request.
(fh) Unless otherwise agreed to by At the Sales ManagerCommencement Date and on each Settlement Date, the Sales Manager must Company shall have received as of listed for quotation the date of this Sales Agreement Company Equity Securities on the Trading Market. All such opinions, certificates, letters and each time referred to other documents will be in Section 4(m) from its counsel an opinion dated as of the date thereof with respect to the Fund, the Common Shares, the Registration Statement and the Prospectus, this Sales Agreement and the form and sufficiency of all proceedings taken in connection compliance with the sale and delivery of the Common Shares. Such opinion and proceedings shall fulfill the requirements of this Section 5(f) provisions hereof only if such opinion and proceedings they are satisfactory in all respects form and substance to the Sales Manager. The Fund and the Investment Adviser must have furnished to such counsel such documents as counsel may reasonably request for the purpose of enabling them to render such opinion.
(g) Unless otherwise agreed to by the Sales Manager, Company will furnish the Sales Manager must have received on with such conformed copies of such opinions, certificates, letters and other documents as the date of this Sales Agreement a signed letter, dated such date, substantially in the form of Schedule C to this Sales Agreement from the independent registered public accounting firm designated in such Schedule. The Sales Manager also must have received as of each time referred to in Section 4(n) a signed letter from such accountants, dated as of the date thereof, confirming on the basis of a review in accordance with the procedures set forth in their earlier letter that nothing has come to their attention during the period from a date not more than five business days before the date of this Sales Agreement, specified in the letter, to a date not more than five business days before such time, that would require any change in their letter referred to in the foregoing sentence. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Sales Agreement will comply only if they are in form and scope shall reasonably satisfactory to counsel for the Sales Manager, provided that any such documents, forms of which are annexed hereto, shall be deemed satisfactory to such counsel if substantially in such formrequest.
Appears in 2 contracts
Samples: Sales Agreement (Capstead Mortgage Corp), Sales Agreement (Capstead Mortgage Corp)
Conditions of the Sales Manager’s Obligations. The obligations of the Sales Manager to sell Common Shares are subject to the accuracy on the date of this Sales Agreement, and as of each Settlement Date, of the representations of the Fund and the Investment Adviser in this Sales Agreement, to the accuracy and completeness of all material statements made by the Fund and the Investment Adviser or any of their respective officers in any certificate delivered to the Sales Manager or its counsel pursuant to this Sales Agreement, to performance by the Fund and the Investment Adviser of their respective obligations under this Sales Agreement and to each of the following additional conditions:
(a) The Registration Statement must have become effective. The Prospectus must have been filed in accordance with Rule 497(b) or (h) or a certificate must have been filed in accordance with Rule 497(j), as the case may be, 424 under the Securities Act.
(b) No order suspending the effectiveness of the Registration Statement may be in effect and no proceedings for such purpose may be pending before or, to the knowledge of counsel to the Sales Manager, threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) must be complied with or waived to the reasonable satisfaction of the Sales Manager.
(c) Since the dates as of which information is given in the Registration Statement and the Prospectus, (i) there must not have been any material change in the Common Shares except as set forth in or contemplated by the Prospectus; (ii) there must not have been any material adverse change in the general affairs, prospects, management, business, financial condition or results of operations of the Fund or the Investment Adviser whether or not arising from transactions in the ordinary course of business as set forth in or contemplated by the Prospectus; (iii) the Fund must not have sustained any material loss or interference with its business from any court or from legislative or other governmental action, order or decree, whether foreign or domestic, or from any other occurrence not described in the Registration Statement and the Prospectus; and (iv) there must not have occurred any event that makes untrue or incorrect in any material respect any statement or information contained in the Registration Statement or the Prospectus or that is not reflected in the Registration Statement or the Prospectus but should be reflected therein in order to make the statements or information therein (in the case of the Prospectus, in light of the circumstances in which they were made) not misleading in any material respect; if, in the judgment of the Sales Manager, any such development referred to in clause (i), (ii), (iii), or (iv) of this paragraph (c) makes it impracticable or inadvisable to consummate the sale and delivery of the Common Shares pursuant to this Sales Agreement at the then current market price of the Common Shares.
(d) Unless otherwise agreed to by the Sales Manager, the Sales Manager must have received as of each Settlement Date a certificate, dated such date, of the President or a Vice-President and the chief financial or accounting officer of each of the Fund and the Investment Adviser certifying (in their capacity as such officers and, with respect to clauses (ii), (iii) and (vi) below, on behalf of the Fund and the Investment Adviser, as the case may be) that (i) the signers have carefully examined the Registration Statement, the Prospectus and this Sales Agreement, (ii) the representations of the Fund (with respect to the certificates from such Fund officers) and the representations of the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) in this Sales Agreement are accurate on and as of the date of the certificate, (iii) there has not been any material adverse change in the general affairs, prospects, management, business, financial condition or results of operations of the Fund (with respect to the certificates from such Fund officers) or the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser), which change would materially and adversely affect the ability of the Fund or the Investment Adviser, as the case may be, to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement (with respect to the certificates from such officers of the Investment Adviser), whether or not arising from transactions in the ordinary course of business, (iv) with respect to the Fund only, no order suspending the effectiveness of the Registration Statement, prohibiting the sale of any of the Common Shares or otherwise having a material adverse effect on the Fund has been issued and no proceedings for any such purpose are pending before or, to the knowledge of such officers after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic, (v) no order having a material adverse effect on the ability of the Investment Adviser to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement, as the case may be, has been issued and no proceedings for any such purpose are pending before or, to the knowledge of the officers of the Investment Adviser after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic and (vi) each of the Fund (with respect to the certificates from such Fund officers) and the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) has performed all of its respective agreements that this Sales Agreement requires it to perform by such Settlement Date (to the extent not waived in writing by the Sales Manager).
(e) Unless otherwise agreed to by the Sales Manager, the Sales Manager must have received as of the date of this Sales Agreement and each time referred to in Section 4(m) the opinions dated as of the date thereof substantially in the form of Schedules A and B to this Sales Agreement (modified in the case of times referred to in Section 4(m) as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to that date) from the counsel identified in each such Schedule.
(f) Unless otherwise agreed to by the Sales Manager, the Sales Manager must have received as of the date of this Sales Agreement and each time referred to in Section 4(m) from its counsel an opinion dated as of the date thereof with respect to the Fund, the Common Shares, the Registration Statement and the Prospectus, this Sales Agreement and the form and sufficiency of all proceedings taken in connection with the sale and delivery of the Common Shares. Such opinion and proceedings shall fulfill the requirements of this Section 5(f) only if such opinion and proceedings are satisfactory in all respects to the Sales Manager. The Fund and the Investment Adviser must have furnished to such counsel such documents as counsel may reasonably request for the purpose of enabling them to render such opinion.
(g) Unless otherwise agreed to by the Sales Manager, the Sales Manager must have received on the date of this Sales Agreement a signed letter, dated such date, substantially in the form of Schedule C to this Sales Agreement from the independent registered public accounting firm designated in such Schedule. The Sales Manager also must have received as of each time referred to in Section 4(n) a signed letter from such accountants, dated as of the date thereof, confirming on the basis of a review in accordance with the procedures set forth in their earlier letter that nothing has come to their attention during the period from a date not more than five business days before the date of this Sales Agreement, specified in the letter, to a date not more than five business days before such time, that would require any change in their letter referred to in the foregoing sentence. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Sales Agreement will comply only if they are in form and scope reasonably satisfactory to counsel for the Sales Manager, provided that any such documents, forms of which are annexed hereto, shall be deemed satisfactory to such counsel if substantially in such form.
Appears in 2 contracts
Samples: Sales Agreement (GAMCO Global Gold, Natural Resources & Income Trust), Sales Agreement (GAMCO Global Gold, Natural Resources & Income Trust)
Conditions of the Sales Manager’s Obligations. 4.1 The obligations of the Sales Manager to sell Common Shares are the Stock as provided herein shall be subject to the accuracy on accuracy, as of the date of this Sales Agreementhereof, and as of each Settlement DateDate contemplated under this Agreement, of the representations and warranties of the Fund and the Investment Adviser in this Sales AgreementCompany herein, to the accuracy and completeness of all material statements made by the Fund and the Investment Adviser or any of their respective officers in any certificate delivered to the Sales Manager or its counsel pursuant to this Sales Agreement, to performance by the Fund and the Investment Adviser Company of their respective its obligations under this Sales Agreement hereunder and to each of the following additional conditions:
(a) The Registration Statement must contemplated by Section 3.1(a) shall have become been declared effective. The Prospectus must have been filed in accordance with Rule 497(b) or (h) or a certificate must have been filed in accordance with Rule 497(j), as the case may be, under the Securities Act.
(b) No stop order suspending the effectiveness of the Registration Statement may be in effect shall have been issued and no proceedings proceeding for such that purpose may be pending before shall have been instituted or, to the knowledge of counsel to the Company or the Sales Manager, threatened by the Commission, and any requests request of the Commission for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) must be shall have been complied with or waived to the reasonable satisfaction of the Sales Manager’s reasonable satisfaction.
(b) The Sales Manager shall not have advised the Company that the Registration Statement or the Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact that in the Sales Manager’s reasonable opinion is material, or omits to state a fact that in the Sales Manager’s reasonable opinion is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) Since Except as contemplated in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there must shall not have been any material change in the Common Shares except as set forth in capital stock of the Company, or contemplated by the Prospectus; (ii) there must not have been any material adverse change change, or any development that may reasonably be expected to cause a material adverse change, in the general affairscondition (financial or other), business, prospects, management, business, financial condition net worth or results of operations of the Fund Company, or the Investment Adviser whether or not arising from transactions any adverse change in the ordinary course rating assigned to any securities of business the Company.
(1) The Sales Manager shall have received at the date of the first sale of Stock hereunder (the “Commencement Date”) and at every other date specified in Section 3.1(n) hereof, opinions of Company Counsel, dated as set forth of the Commencement Date and dated as of such other date, in or contemplated the form of Exhibit A hereto.
(2) The Sales Manager shall have received a letter from Company Counsel authorizing the Sales Manager to rely on the opinion on tax matters delivered by the Prospectus; (iii) the Fund must not have sustained any material loss or interference with its business from any court or from legislative or other governmental action, order or decree, whether foreign or domestic, or from any other occurrence not described in Company Counsel as Exhibit 8.1 to the Registration Statement (which opinion must be reasonably satisfactory to the Sales Manager).
(e) At the Commencement Date and at such other dates specified in Section 3.1(o) hereof, the Prospectus; and (iv) there must not Sales Manager shall have occurred any event that makes untrue received a “comfort letter” from Ernst & Young LLP, independent public accountants for the Company, or incorrect in any material respect any statement or information contained in the Registration Statement or the Prospectus or that is not reflected in the Registration Statement or the Prospectus but should be reflected therein in order other independent accountants satisfactory to make the statements or information therein (in the case of the Prospectus, in light of the circumstances in which they were made) not misleading in any material respect; if, in the judgment of the Sales Manager, any such development referred dated the date of delivery thereof, in form and substance satisfactory to in clause (i), (ii), (iii), or (iv) of this paragraph (c) makes it impracticable or inadvisable to consummate the sale and delivery of the Common Shares pursuant to this Sales Agreement at the then current market price of the Common SharesManager.
(df) Unless otherwise agreed to The Sales Manager shall have received from the Company a certificate, or certificates, signed by the Sales ManagerChief Financial Officer and Executive Vice President of the Company, dated as of the Commencement Date and (unless the Company is not then selling Stock through the Sales Manager must have received and has not requested the Sales Manager to sell Stock) dated as of the first business day of each Settlement Date calendar month thereafter (each, a certificate“Certificate Date”), dated such dateto the effect that, to the best of their knowledge based upon reasonable investigation:
(i) The representations and warranties of the President or a Vice-President Company in this Agreement are true and the chief financial or accounting officer of each correct, as if made at and as of the Fund and Commencement Date or the Investment Adviser certifying Certificate Date (in their capacity as such officers and, with respect to clauses (ii), (iii) and (vi) below, on behalf of the Fund and the Investment Adviser, as the case may be) that ), and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Commencement Date and each such Certificate Date (i) as the signers have carefully examined the Registration Statement, the Prospectus and this Sales Agreement, case may be);
(ii) No stop order suspending the representations effectiveness of the Fund (with respect Registration Statement has been issued, and no proceeding for that purpose has been instituted or, to the certificates from knowledge of such Fund officersofficer after due inquiry, is threatened, by the Commission;
(iii) and the representations of the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) in this Sales Agreement are accurate on and as of Since the date of this Agreement there has occurred no event required to be set forth in an amendment or supplement to the certificateRegistration Statement or Prospectus that has not been so set forth and there has been no document required to be filed under the Exchange Act and the rules and regulations of the Commission thereunder that upon such filing would be deemed to be incorporated by reference in the Prospectus that has not been so filed; and
(iv) Since the date of this Agreement, (iii) there has not been any material adverse change in the general affairs, prospects, managementassets or properties, business, financial condition or results of operations operations, prospects or condition (financial or otherwise) of the Fund (with respect Company, which has not been described in an amendment or supplement to the certificates from such Fund officers) Registration Statement or the Investment Adviser Prospectus (with respect to the certificates from such officers of the Investment Adviser), which change would materially and adversely affect the ability of the Fund directly or the Investment Adviser, as the case may be, to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement (with respect to the certificates from such officers of the Investment Adviser), whether or not arising from transactions in the ordinary course of business, (iv) with respect to the Fund only, no order suspending the effectiveness of the Registration Statement, prohibiting the sale of any of the Common Shares or otherwise having a material adverse effect on the Fund has been issued and no proceedings for any such purpose are pending before or, to the knowledge of such officers after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic, (v) no order having a material adverse effect on the ability of the Investment Adviser to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement, as the case may be, has been issued and no proceedings for any such purpose are pending before or, to the knowledge of the officers of the Investment Adviser after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic and (vi) each of the Fund (with respect to the certificates from such Fund officers) and the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) has performed all of its respective agreements that this Sales Agreement requires it to perform by such Settlement Date (to the extent not waived in writing by the Sales Managerincorporation).
(eg) Unless otherwise agreed At the Commencement Date and on each Settlement Date, the Company shall have furnished to by the Sales Manager, the Sales Manager must have received such appropriate further information, certificates and documents as of the date of this Sales Agreement and each time referred to in Section 4(m) the opinions dated as of the date thereof substantially in the form of Schedules A and B to this Sales Agreement (modified in the case of times referred to in Section 4(m) as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to that date) from the counsel identified in each such Schedule.
(f) Unless otherwise agreed to by the Sales Manager, the Sales Manager must have received as of the date of this Sales Agreement may reasonably request. All such opinions, certificates, letters and each time referred to other documents will be in Section 4(m) from its counsel an opinion dated as of the date thereof with respect to the Fund, the Common Shares, the Registration Statement and the Prospectus, this Sales Agreement and the form and sufficiency of all proceedings taken in connection compliance with the sale and delivery of the Common Shares. Such opinion and proceedings shall fulfill the requirements of this Section 5(f) provisions hereof only if such opinion and proceedings they are satisfactory in all respects form and substance to the Sales Manager. The Fund and the Investment Adviser must have furnished to such counsel such documents as counsel may reasonably request for the purpose of enabling them to render such opinion.
(g) Unless otherwise agreed to by the Sales Manager, Company will furnish the Sales Manager must have received on with such conformed copies of such opinions, certificates, letters and other documents as the date of this Sales Agreement a signed letter, dated such date, substantially in the form of Schedule C to this Sales Agreement from the independent registered public accounting firm designated in such Schedule. The Sales Manager also must have received as of each time referred to in Section 4(n) a signed letter from such accountants, dated as of the date thereof, confirming on the basis of a review in accordance with the procedures set forth in their earlier letter that nothing has come to their attention during the period from a date not more than five business days before the date of this Sales Agreement, specified in the letter, to a date not more than five business days before such time, that would require any change in their letter referred to in the foregoing sentence. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Sales Agreement will comply only if they are in form and scope shall reasonably satisfactory to counsel for the Sales Manager, provided that any such documents, forms of which are annexed hereto, shall be deemed satisfactory to such counsel if substantially in such formrequest.
Appears in 2 contracts
Samples: Sales Agreement (Capstead Mortgage Corp), Sales Agreement (Capstead Mortgage Corp)
Conditions of the Sales Manager’s Obligations. 4.1 The obligations of the Sales Manager to sell Common Shares are the Company Equity Securities as provided herein shall be subject to the accuracy on accuracy, as of the date of this Sales Agreementhereof, and as of each Settlement DateDate contemplated under this Agreement, of the representations and warranties of the Fund and the Investment Adviser in this Sales AgreementCompany herein, to the accuracy and completeness of all material statements made by the Fund and the Investment Adviser or any of their respective officers in any certificate delivered to the Sales Manager or its counsel pursuant to this Sales Agreement, to performance by the Fund and the Investment Adviser Company of their respective its obligations under this Sales Agreement hereunder and to each of the following additional conditions:
(a) The Registration Statement must have become has been declared effective. The Prospectus must have been filed in accordance with Rule 497(b) or (h) or a certificate must have been filed in accordance with Rule 497(j), as the case may be, under the Securities Act.
(b) No stop order suspending the effectiveness of the Registration Statement may be in effect shall have been issued and no proceedings proceeding for such that purpose may be pending before shall have been instituted or, to the knowledge of counsel to the Company or the Sales Manager, threatened by the Commission, and any requests request of the Commission for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) must be shall have been complied with or waived to the Sales Manager’s reasonable satisfaction of satisfaction. The Company Equity Securities shall have been listed for trading on the Trading Market.
(b) The Sales Manager shall not have advised the Company that the disclosures in the Registration Statement or the Prospectus, or any amendment or supplement thereto, are not reasonably acceptable to the Sales Manager.
(c) Since Except as contemplated in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there must not have been any material change in the Common Shares except as set forth in or contemplated by the Prospectus; (ii) there must shall not have been any material adverse change in the general affairscapital stock of the Company, prospectsor any material adverse change, managementor any development that may reasonably be expected to cause a material adverse change, in the condition (financial or other), business, financial condition net worth or results of operations of the Fund Company, or the Investment Adviser whether or not arising from transactions any adverse change in the ordinary course of business as set forth in or contemplated by the Prospectus; (iii) the Fund must not have sustained rating assigned to any material loss or interference with its business from any court or from legislative or other governmental action, order or decree, whether foreign or domestic, or from any other occurrence not described in the Registration Statement and the Prospectus; and (iv) there must not have occurred any event that makes untrue or incorrect in any material respect any statement or information contained in the Registration Statement or the Prospectus or that is not reflected in the Registration Statement or the Prospectus but should be reflected therein in order to make the statements or information therein (in the case securities of the ProspectusCompany.
(i) The Sales Manager shall have received at the date of the first sale of Company Equity Securities hereunder (the “Commencement Date”) and at every other date specified in Section 3.1(n) hereof, opinions of Company Counsel, dated as of the Commencement Date and dated as of such other date, in light of the circumstances in which they were made) not misleading in any material respect; if, in the judgment of a form reasonably acceptable to the Sales Manager, any such development referred to in clause (i), (ii), (iii), or (iv) of this paragraph (c) makes it impracticable or inadvisable to consummate the sale and delivery of the Common Shares pursuant to this Sales Agreement at the then current market price of the Common Shares.
(dii) Unless otherwise agreed to by The Sales Manager shall have received a letter from Company Counsel authorizing the Sales ManagerManager to rely on the opinion on tax matters delivered by Company Counsel as Exhibit 8.1 to the Registration Statement.
(e) At the Commencement Date and at such other dates specified in Section 3.1(o) hereof, the Sales Manager must shall have received as a “comfort letter” from Ernst & Young LLP, independent public accountants for the Company, or other independent accountants then retained by the Company, dated the date of each Settlement Date delivery thereof, in form and substance satisfactory to the Sales Manager.
(f) The Sales Manager shall have received from the Company a certificate, dated such dateor certificates, signed by the Chief Financial Officer and Senior Vice President of the President or a Vice-President Company, dated as of the Commencement Date and (unless the chief financial or accounting officer Company is not then selling Company Equity Securities through the Sales Manager and has not requested the Sales Manager to sell Company Equity Securities) dated as of the first business day of each calendar quarter thereafter and such other times as the Sales Manager shall request (each, a “Certificate Date”), to the effect that, to the best of their knowledge based upon reasonable investigation:
(i) The representations and warranties of the Fund Company in this Agreement are true and the Investment Adviser certifying (in their capacity correct, as such officers and, with respect to clauses (ii), (iii) if made at and (vi) below, on behalf as of the Fund and Commencement Date or the Investment Adviser, Certificate Date (as the case may be) that ), and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Commencement Date and each such Certificate Date (i) as the signers have carefully examined the Registration Statement, the Prospectus and this Sales Agreement, case may be);
(ii) No stop order suspending the representations effectiveness of the Fund (with respect Registration Statement has been issued, and no proceeding for that purpose has been instituted or, to the certificates from knowledge of such Fund officersofficer after due inquiry, is threatened, by the Commission;
(iii) and the representations of the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) in this Sales Agreement are accurate on and as of Since the date of this Agreement there has occurred no event required to be set forth in an amendment or supplement to the certificateRegistration Statement or Prospectus that has not been so set forth and there has been no document required to be filed under the Exchange Act and the rules and regulations of the Commission thereunder that upon such filing would be deemed to be incorporated by reference in the Prospectus that has not been so filed; and
(iv) Since the date of this Agreement, (iii) there has not been any material adverse change in the general affairs, prospects, managementassets or properties, business, financial condition or results of operations or condition (financial or otherwise) of the Fund (with respect Company, which has not been described in an amendment or supplement to the certificates from such Fund officers) Registration Statement or the Investment Adviser Prospectus (with respect to the certificates from such officers of the Investment Adviser), which change would materially and adversely affect the ability of the Fund directly or the Investment Adviser, as the case may be, to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement (with respect to the certificates from such officers of the Investment Adviser), whether or not arising from transactions in the ordinary course of business, (iv) with respect to the Fund only, no order suspending the effectiveness of the Registration Statement, prohibiting the sale of any of the Common Shares or otherwise having a material adverse effect on the Fund has been issued and no proceedings for any such purpose are pending before or, to the knowledge of such officers after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic, (v) no order having a material adverse effect on the ability of the Investment Adviser to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement, as the case may be, has been issued and no proceedings for any such purpose are pending before or, to the knowledge of the officers of the Investment Adviser after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic and (vi) each of the Fund (with respect to the certificates from such Fund officers) and the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) has performed all of its respective agreements that this Sales Agreement requires it to perform by such Settlement Date (to the extent not waived in writing by the Sales Managerincorporation).
(eg) Unless otherwise agreed At the Commencement Date and on each Settlement Date, the Company shall have furnished to by the Sales Manager, the Sales Manager must have received such appropriate further information, certificates and documents as of the date of this Sales Agreement and each time referred to in Section 4(m) the opinions dated as of the date thereof substantially in the form of Schedules A and B to this Sales Agreement (modified in the case of times referred to in Section 4(m) as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to that date) from the counsel identified in each such ScheduleManager may reasonably request.
(fh) Unless otherwise agreed to by At the Sales ManagerCommencement Date and on each Settlement Date, the Sales Manager must Company shall have received as of listed for quotation the date of this Sales Agreement Company Equity Securities on the Trading Market. All such opinions, certificates, letters and each time referred to other documents will be in Section 4(m) from its counsel an opinion dated as of the date thereof with respect to the Fund, the Common Shares, the Registration Statement and the Prospectus, this Sales Agreement and the form and sufficiency of all proceedings taken in connection compliance with the sale and delivery of the Common Shares. Such opinion and proceedings shall fulfill the requirements of this Section 5(f) provisions hereof only if such opinion and proceedings they are satisfactory in all respects form and substance to the Sales Manager. The Fund and the Investment Adviser must have furnished to such counsel such documents as counsel may reasonably request for the purpose of enabling them to render such opinion.
(g) Unless otherwise agreed to by the Sales Manager, Company will furnish the Sales Manager must have received on with such conformed copies of such opinions, certificates, letters and other documents as the date of this Sales Agreement a signed letter, dated such date, substantially in the form of Schedule C to this Sales Agreement from the independent registered public accounting firm designated in such Schedule. The Sales Manager also must have received as of each time referred to in Section 4(n) a signed letter from such accountants, dated as of the date thereof, confirming on the basis of a review in accordance with the procedures set forth in their earlier letter that nothing has come to their attention during the period from a date not more than five business days before the date of this Sales Agreement, specified in the letter, to a date not more than five business days before such time, that would require any change in their letter referred to in the foregoing sentence. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Sales Agreement will comply only if they are in form and scope shall reasonably satisfactory to counsel for the Sales Manager, provided that any such documents, forms of which are annexed hereto, shall be deemed satisfactory to such counsel if substantially in such formrequest.
Appears in 2 contracts
Samples: Sales Agreement (Capstead Mortgage Corp), Sales Agreement (Capstead Mortgage Corp)
Conditions of the Sales Manager’s Obligations. The obligations of the Sales Manager to sell Common Preferred Shares are subject to the accuracy on the date of this Sales Agreement, and as of each Settlement Date, of the representations of the Fund and the Investment Adviser in this Sales Agreement, to the accuracy and completeness of all material statements made by the Fund and the Investment Adviser or any of their respective officers in any certificate delivered to the Sales Manager or its counsel pursuant to this Sales Agreement, to performance by the Fund and the Investment Adviser of their respective obligations under this Sales Agreement and to each of the following additional conditions:
(a) The Registration Statement must have become effective. The Prospectus must have been filed in accordance with Rule 497(b497(c) or (h) or a certificate must have been filed in accordance with Rule 497(j), as the case may be, under the Securities Act.
(b) No order suspending the effectiveness of the Registration Statement may be in effect and no proceedings for such purpose may be pending before or, to the knowledge of counsel to the Sales Manager, threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) must be complied with or waived to the reasonable satisfaction of the Sales Manager.
(c) Since the dates as of which information is given in the Registration Statement and the Prospectus, (i) there must not have been any material change in the Common Preferred Shares except as set forth in or contemplated by the Prospectus; (ii) there must not have been any material adverse change in the general affairs, prospects, management, business, financial condition or results of operations of the Fund or the Investment Adviser whether or not arising from transactions in the ordinary course of business as set forth in or contemplated by the Prospectus; (iii) the Fund must not have sustained any material loss or interference with its business from any court or from legislative or other governmental action, order or decree, whether foreign or domestic, or from any other occurrence not described in the Registration Statement and the Prospectus; and (iv) there must not have occurred any event that makes untrue or incorrect in any material respect any statement or information contained in the Registration Statement or the Prospectus or that is not reflected in the Registration Statement or the Prospectus but should be reflected therein in order to make the statements or information therein (in the case of the Prospectus, in light of the circumstances in which they were made) not misleading in any material respect; if, in the judgment of the Sales Manager, any such development referred to in clause (i), (ii), (iii), or (iv) of this paragraph (c) makes it impracticable or inadvisable to consummate the sale and delivery of the Common Preferred Shares pursuant to this Sales Agreement at the then current market price of the Common Preferred Shares.
(d) Unless otherwise agreed to by the Sales Manager, the Sales Manager must have received as of each Settlement Date a certificate, dated such date, of the President or a Vice-President and the chief financial or accounting officer of each of the Fund and the Investment Adviser certifying (in their capacity as such officers and, with respect to clauses (ii), (iii) and (vi) below, on behalf of the Fund and the Investment Adviser, as the case may be) that (i) the signers have carefully examined the Registration Statement, the Prospectus and this Sales Agreement, (ii) the representations of the Fund (with respect to the certificates from such Fund officers) and the representations of the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) in this Sales Agreement are accurate on and as of the date of the certificate, (iii) there has not been any material adverse change in the general affairs, prospects, management, business, financial condition or results of operations of the Fund (with respect to the certificates from such Fund officers) or the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser), which change would materially and adversely affect the ability of the Fund or the Investment Adviser, as the case may be, to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement (with respect to the certificates from such officers of the Investment Adviser), whether or not arising from transactions in the ordinary course of business, (iv) with respect to the Fund only, no order suspending the effectiveness of the Registration Statement, prohibiting the sale of any of the Common Preferred Shares or otherwise having a material adverse effect on the Fund has been issued and no proceedings for any such purpose are pending before or, to the knowledge of such officers after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic, (v) no order having a material adverse effect on the ability of the Investment Adviser to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement, as the case may be, has been issued and no proceedings for any such purpose are pending before or, to the knowledge of the officers of the Investment Adviser after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic and (vi) each of the Fund (with respect to the certificates from such Fund officers) and the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) has performed all of its respective agreements that this Sales Agreement requires it to perform by such Settlement Date (to the extent not waived in writing by the Sales Manager).
(e) Unless otherwise agreed to by the Sales Manager, the Sales Manager must have received as of the date of this Sales Agreement and each time referred to in Section 4(m) the opinions dated as of the date thereof substantially in the form of Schedules A and B to this Sales Agreement (modified in the case of times referred to in Section 4(m) as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to that date) from the counsel identified in each such Schedule.
(f) Unless otherwise agreed to by the Sales Manager, the Sales Manager must have received as of the date of this Sales Agreement and each time referred to in Section 4(m) from its counsel an opinion dated as of the date thereof with respect to the Fund, the Common Preferred Shares, the Registration Statement and the Prospectus, this Sales Agreement and the form and sufficiency of all proceedings taken in connection with the sale and delivery of the Common Preferred Shares. Such opinion and proceedings shall fulfill the requirements of this Section 5(f) only if such opinion and proceedings are satisfactory in all respects to the Sales Manager. The Fund and the Investment Adviser must have furnished to such counsel such documents as counsel may reasonably request for the purpose of enabling them to render such opinion.
(g) Unless otherwise agreed to by the Sales Manager, the Sales Manager must have received on the date of this Sales Agreement a signed letter, dated such date, substantially in the form of Schedule C to this Sales Agreement from the independent registered public accounting firm designated in such Schedule. The Sales Manager also must have received as of each time referred to in Section 4(n) a signed letter from such accountants, dated as of the date thereof, confirming on the basis of a review in accordance with the procedures set forth in their earlier letter that nothing has come to their attention during the period from a date not more than five business days before the date of this Sales Agreement, specified in the letter, to a date not more than five business days before such time, that would require any change in their letter referred to in the foregoing sentence. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Sales Agreement will comply only if they are in form and scope reasonably satisfactory to counsel for the Sales Manager, provided that any such documents, forms of which are annexed hereto, shall be deemed satisfactory to such counsel if substantially in such form.
Appears in 2 contracts
Samples: Sales Agreement (Gabelli Healthcare & WellnessRx Trust), Sales Agreement (Gabelli Healthcare & WellnessRx Trust)
Conditions of the Sales Manager’s Obligations. 4.1 The obligations of the Sales Manager to sell Common Shares are the Stock as provided in this Agreement shall be subject to the accuracy on accuracy, as of the date of this Sales Agreementhereof, and as of each Settlement DateDate contemplated under this Agreement, of the representations and warranties of the Fund and the Investment Adviser Company in this Sales Agreement, to the accuracy and completeness of all material statements made by the Fund and the Investment Adviser or any of their respective officers in any certificate delivered to the Sales Manager or its counsel pursuant to this Sales Agreement, to performance by the Fund and the Investment Adviser Company of their respective its obligations under in this Sales Agreement and to each of the following additional conditions:
(a) The Registration Statement must shall have become been declared effective. The Prospectus must have been filed in accordance with Rule 497(b) or (h) or a certificate must have been filed in accordance with Rule 497(j), as the case may be, under the Securities Act.
(b) No stop order suspending the effectiveness of the Registration Statement may be in effect shall have been issued and no proceedings proceeding for such that purpose may be pending before shall have been instituted or, to the knowledge of counsel to the Company or the Sales Manager, threatened by the Commission, and any requests request of the Commission for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) must be shall have been complied with or waived to the Sales Manager’s reasonable satisfaction of satisfaction. The supplement to the Prospectus contemplated by Section 3.1(a) above shall have been filed.
(b) The Sales Manager shall not have advised the Company that the disclosures in the Registration Statement or the Prospectus are not reasonably acceptable to the Sales Manager.
(c) Since Except as contemplated in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there must not have been any material change in the Common Shares except as set forth in or contemplated by the Prospectus; (ii) there must shall not have been any material adverse change in the general affairscapital stock of the Company, or any material adverse change, or any development that may reasonably be expected to cause a material adverse change, in the condition (financial or other), business, prospects, management, business, financial condition net worth or results of operations of the Fund Company, or the Investment Adviser whether or not arising from transactions any adverse change in the ordinary course of business as set forth in or contemplated by the Prospectus; (iii) the Fund must not have sustained rating assigned to any material loss or interference with its business from any court or from legislative or other governmental action, order or decree, whether foreign or domestic, or from any other occurrence not described in the Registration Statement and the Prospectus; and (iv) there must not have occurred any event that makes untrue or incorrect in any material respect any statement or information contained in the Registration Statement or the Prospectus or that is not reflected in the Registration Statement or the Prospectus but should be reflected therein in order to make the statements or information therein (in the case debt securities of the ProspectusCompany, in light of the circumstances in which they were made) not misleading in any material respect; if, in the judgment of the Sales Manager, any such development referred to in clause (i), (ii), (iii), or (iv) of this paragraph (c) makes it impracticable or inadvisable to consummate the sale and delivery of the Common Shares pursuant to this Sales Agreement at the then current market price of the Common Sharesif any.
(d) Unless otherwise agreed The Sales Manager shall have received at the date of the first sale of Stock hereunder (the “Commencement Date”) and at every other date specified in Section 3.1(n) above, opinions of Company Counsel and special counsel, dated as of the Commencement Date and dated as of such other date, in form and substance reasonably acceptable to by the Sales Manager.
(e) At the Commencement Date and at such other dates specified in Section 3.1(o) above, the Sales Manager must shall have received as a “comfort letter” from MaloneBailey LLP, independent public accountants for the Company, or other independent accountants then retained by the Company, dated the date of each Settlement Date delivery thereof, in form and substance satisfactory to the Sales Manager.
(f) The Sales Manager shall have received from the Company a certificate, dated such dateor certificates, signed by (i) the Chief Financial Officer and (ii) the President and Chief Executive Officer or any Vice President of the President or a Vice-President Company, dated as of the Commencement Date and (unless the chief financial or accounting officer Company is not then selling Stock through the Sales Manager and has not requested the Sales Manager to sell Stock) dated as of the first business day of each calendar month thereafter (each, a “Certificate Date”), to the effect that, to the best of their knowledge based upon reasonable investigation:
(i) The representations and warranties of the Fund Company in this Agreement are true and the Investment Adviser certifying (in their capacity correct, as such officers and, with respect to clauses (ii), (iii) if made at and (vi) below, on behalf as of the Fund and Commencement Date or the Investment Adviser, Certificate Date (as the case may be) that ), and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Commencement Date and each such Certificate Date (i) as the signers have carefully examined the Registration Statement, the Prospectus and this Sales Agreement, case may be);
(ii) No stop order suspending the representations effectiveness of the Fund (with respect Registration Statement has been issued, and no proceeding for that purpose has been instituted or, to the certificates from knowledge of such Fund officersofficer after due inquiry, is threatened, by the Commission;
(iii) and the representations of the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) in this Sales Agreement are accurate on and as of Since the date of this Agreement there has occurred no event required to be set forth in an amendment or supplement to the certificateRegistration Statement or Prospectus that has not been so set forth and there has been no document required to be filed under the Exchange Act and the rules and regulations thereunder that upon such filing would be deemed to be incorporated by reference in the Prospectus that has not been so filed; and
(iv) Since the date of this Agreement, (iii) there has not been any material adverse change in the general affairsassets or properties, business, prospects, management, business, financial condition or results of operations operations, or condition (financial or otherwise) of the Fund (with respect Company, which has not been described in an amendment or supplement to the certificates from such Fund officers) Registration Statement or the Investment Adviser Prospectus (with respect to the certificates from such officers of the Investment Adviser), which change would materially and adversely affect the ability of the Fund directly or the Investment Adviser, as the case may be, to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement (with respect to the certificates from such officers of the Investment Adviser), whether or not arising from transactions in the ordinary course of business, (iv) with respect to the Fund only, no order suspending the effectiveness of the Registration Statement, prohibiting the sale of any of the Common Shares or otherwise having a material adverse effect on the Fund has been issued and no proceedings for any such purpose are pending before or, to the knowledge of such officers after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic, (v) no order having a material adverse effect on the ability of the Investment Adviser to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement, as the case may be, has been issued and no proceedings for any such purpose are pending before or, to the knowledge of the officers of the Investment Adviser after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic and (vi) each of the Fund (with respect to the certificates from such Fund officers) and the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) has performed all of its respective agreements that this Sales Agreement requires it to perform by such Settlement Date (to the extent not waived in writing by the Sales Managerincorporation).
(eg) Unless otherwise agreed At the Commencement Date and on each Settlement Date, the Company shall have furnished to by the Sales Manager, the Sales Manager must have received such appropriate further information, officers’ certificates and similar documents as of the date of this Sales Agreement and each time referred to in Section 4(m) the opinions dated as of the date thereof substantially in the form of Schedules A and B to this Sales Agreement (modified in the case of times referred to in Section 4(m) as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to that date) from the counsel identified in each such ScheduleManager may reasonably request.
(fh) Unless otherwise agreed to by At the Sales ManagerCommencement Date and on each Settlement Date, the Sales Manager must Company shall have received as of listed for quotation the date of this Sales Agreement Stock on the Trading Market. All such opinions, certificates, letters and each time referred to other documents will be in Section 4(m) from its counsel an opinion dated as of the date thereof with respect to the Fund, the Common Shares, the Registration Statement and the Prospectus, this Sales Agreement and the form and sufficiency of all proceedings taken in connection compliance with the sale and delivery of the Common Shares. Such opinion and proceedings shall fulfill the requirements of this Section 5(f) provisions hereof only if such opinion and proceedings they are satisfactory in all respects form and substance to the Sales Manager. The Fund and the Investment Adviser must have furnished to such counsel such documents as counsel may reasonably request for the purpose of enabling them to render such opinion.
(g) Unless otherwise agreed to by the Sales Manager, Company will furnish the Sales Manager must have received on with such conformed copies of such opinions, certificates, letters and other documents, as the date of this Sales Agreement a signed letter, dated such date, substantially in the form of Schedule C to this Sales Agreement from the independent registered public accounting firm designated in such Schedule. The Sales Manager also must have received as of each time referred to in Section 4(n) a signed letter from such accountants, dated as of the date thereof, confirming on the basis of a review in accordance with the procedures set forth in their earlier letter that nothing has come to their attention during the period from a date not more than five business days before the date of this Sales Agreement, specified in the letter, to a date not more than five business days before such time, that would require any change in their letter referred to in the foregoing sentence. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Sales Agreement will comply only if they are in form and scope shall reasonably satisfactory to counsel for the Sales Manager, provided that any such documents, forms of which are annexed hereto, shall be deemed satisfactory to such counsel if substantially in such formrequest.
Appears in 2 contracts
Samples: Sales Agreement (Opexa Therapeutics, Inc.), Sales Agreement (Opexa Therapeutics, Inc.)
Conditions of the Sales Manager’s Obligations. 4.1 The obligations of the Sales Manager to sell the Common Shares are Stock as provided herein shall be subject to the accuracy on accuracy, as of the date of this Sales Agreementhereof, and as of each Settlement DateDate contemplated under this Agreement, of the representations and warranties of the Fund and the Investment Adviser in this Sales AgreementCompany herein, to the accuracy and completeness of all material statements made by the Fund and the Investment Adviser or any of their respective officers in any certificate delivered to the Sales Manager or its counsel pursuant to this Sales Agreement, to performance by the Fund and the Investment Adviser Company of their respective its obligations under this Sales Agreement hereunder and to each of the following additional conditions:
(a) The Registration Statement must have become has been declared effective. The Prospectus must have been filed in accordance with Rule 497(b) or (h) or a certificate must have been filed in accordance with Rule 497(j), as the case may be, under the Securities Act.
(b) No stop order suspending the effectiveness of the Registration Statement may be in effect shall have been issued and no proceedings proceeding for such that purpose may be pending before shall have been instituted or, to the knowledge of counsel to the Company or the Sales Manager, threatened by the Commission, and any requests request of the Commission for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) must be shall have been complied with or waived to the Sales Manager’s reasonable satisfaction of satisfaction. The Common Stock shall have been listed for trading on the Trading Market.
(b) The Sales Manager shall not have advised the Company that the disclosures in the Registration Statement or the Prospectus, or any amendment or supplement thereto, are not reasonably acceptable to the Sales Manager.
(c) Since Except as contemplated in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there must not have been any material change in the Common Shares except as set forth in or contemplated by the Prospectus; (ii) there must shall not have been any material adverse change in the general affairscapital stock of the Company, prospectsor any material adverse change, managementor any development that may reasonably be expected to cause a material adverse change, businessin the condition (financial or other), financial condition business or results of operations of the Fund Company, or the Investment Adviser whether or not arising from transactions any adverse change in the ordinary course of business as set forth in or contemplated by the Prospectus; (iii) the Fund must not have sustained rating assigned to any material loss or interference with its business from any court or from legislative or other governmental action, order or decree, whether foreign or domestic, or from any other occurrence not described in the Registration Statement and the Prospectus; and (iv) there must not have occurred any event that makes untrue or incorrect in any material respect any statement or information contained in the Registration Statement or the Prospectus or that is not reflected in the Registration Statement or the Prospectus but should be reflected therein in order to make the statements or information therein (in the case securities of the ProspectusCompany.
(i) The Sales Manager shall have received at the date of the first sale of Common Stock hereunder (the “Commencement Date”) and at every other date specified in Section 3.1(n) hereof, opinions of Company Counsel, dated as of the Commencement Date and dated as of such other date, in light of the circumstances in which they were made) not misleading in any material respect; if, in the judgment of a form reasonably acceptable to the Sales Manager, any such development referred to in clause (i), (ii), (iii), or (iv) of this paragraph (c) makes it impracticable or inadvisable to consummate the sale and delivery of the Common Shares pursuant to this Sales Agreement at the then current market price of the Common Shares.
(dii) Unless otherwise agreed to by The Sales Manager shall have received a letter from Company Counsel authorizing the Sales ManagerManager to rely on the opinion on tax matters delivered by Company Counsel as Exhibit 8.1 to the Registration Statement.
(e) At the Commencement Date and at such other dates specified in Section 3.1(o) hereof, the Sales Manager must shall have received as a “comfort letter” from Deloitte & Touche, LLP, independent public accountants for the Company, or other independent accountants then retained by the Company, dated the date of each Settlement Date delivery thereof, in form and substance satisfactory to the Sales Manager.
(f) The Sales Manager shall have received from the Company a certificate, dated such dateor certificates, signed by the Chief Financial Officer and Chief Operating Officer (or other officer acceptable to the Sales Manager) of the President or a Vice-President and the chief financial or accounting officer of each Company, dated as of the Fund and Commencement Date (if different from the Investment Adviser certifying (in their capacity as such officers and, with respect to clauses (ii), (iiidate of the Agreement) and (viunless the Company is not then selling Common Stock through the Sales Manager and has not requested the Sales Manager to sell Common Stock) below, on behalf dated as of the Fund first business day of each calendar quarter thereafter and such other times as the Investment AdviserSales Manager shall request (each, a “Certificate Date”), to the effect that:
(i) The representations and warranties of the Company in this Agreement are true and correct, as if made at and as of the Commencement Date or the Certificate Date (as the case may be) that ), and the Company has performed all the agreements and satisfied all the conditions on its part to be performed or satisfied pursuant to this Agreement at or prior to the Commencement Date and each such Certificate Date (i) as the signers have carefully examined the Registration Statement, the Prospectus and this Sales Agreement, case may be);
(ii) No stop order suspending the representations effectiveness of the Fund (with respect Registration Statement has been issued, and no proceeding for that purpose has been instituted or, to the certificates from knowledge of such Fund officersofficer after due inquiry, is threatened, by the Commission;
(iii) and the representations of the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) in this Sales Agreement are accurate on and as of Since the date of this Agreement there has occurred no event required to be set forth in an amendment or supplement to the certificateRegistration Statement or Prospectus that has not been so set forth and there has been no document required to be filed under the Exchange Act and the rules and regulations of the Commission thereunder that upon such filing would be deemed to be incorporated by reference in the Prospectus that has not been so filed; and
(iv) Since the date of this Agreement, (iii) there has not been any material adverse change in the general affairs, prospects, managementassets or properties, business, financial condition or results of operations or condition (financial or otherwise) of the Fund Company and its subsidiaries, taken as a whole, which has not been described in the Registration Statement or Prospectus (with respect directly or by incorporation by reference).
(g) The Sales Manager shall have received from the Manager a letter signed by an officer of the Manager dated as of the Commencement Date and (unless the Company is not then selling Common Stock through the Sales Manager and has not requested the Sales Manager to sell Common Stock) dated as of the first business day of each calendar quarter thereafter and each Certificate Date, to the certificates from such Fund officers) effect that the representations and warranties made on behalf of the Manager in this Agreement are true and correct as of the date of the Commencement Date or the Investment Adviser Certificate Date (with respect to the certificates from such officers of the Investment Adviser), which change would materially and adversely affect the ability of the Fund or the Investment Adviser, as the case may be, to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement (with respect to the certificates from ) as though made at such officers of the Investment Adviser), whether or not arising from transactions in the ordinary course of business, (iv) with respect to the Fund only, no order suspending the effectiveness of the Registration Statement, prohibiting the sale of any of the Common Shares or otherwise having a material adverse effect on the Fund has been issued and no proceedings for any such purpose are pending before or, to the knowledge of such officers after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic, (v) no order having a material adverse effect on the ability of the Investment Adviser to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement, as the case may be, has been issued and no proceedings for any such purpose are pending before or, to the knowledge of the officers of the Investment Adviser after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic and (vi) each of the Fund (with respect to the certificates from such Fund officers) and the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) has performed all of its respective agreements that this Sales Agreement requires it to perform by such Settlement Date (to the extent not waived in writing by the Sales Manager)date.
(eh) Unless otherwise agreed At the Commencement Date and on each Settlement Date, the Company shall have furnished to by the Sales Manager, the Sales Manager must have received such appropriate further certificates and documents as of the date of this Sales Agreement and each time referred to in Section 4(m) the opinions dated as of the date thereof substantially in the form of Schedules A and B to this Sales Agreement (modified in the case of times referred to in Section 4(m) as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to that date) from the counsel identified in each such ScheduleManager may reasonably request.
(fi) Unless otherwise agreed to by At the Sales ManagerCommencement Date and on each Settlement Date, the Sales Manager must Company shall have received as of the date of this Sales Agreement and each time referred to in Section 4(m) from its counsel an opinion dated as of the date thereof with respect to the Fund, listed the Common SharesStock on the Trading Market. All such opinions, certificates, letters and other documents will be in compliance with the Registration Statement and the Prospectus, this Sales Agreement and the provisions hereof only if they are reasonably satisfactory in form and sufficiency of all proceedings taken in connection with the sale and delivery of the Common Shares. Such opinion and proceedings shall fulfill the requirements of this Section 5(f) only if such opinion and proceedings are satisfactory in all respects substance to the Sales Manager. The Fund and the Investment Adviser must have furnished to such counsel such documents as counsel may reasonably request for the purpose of enabling them to render such opinion.
(g) Unless otherwise agreed to by the Sales Manager, Company will furnish the Sales Manager must have received on with such conformed copies of such opinions, certificates, letters and other documents as the date of this Sales Agreement a signed letter, dated such date, substantially in the form of Schedule C to this Sales Agreement from the independent registered public accounting firm designated in such Schedule. The Sales Manager also must have received as of each time referred to in Section 4(n) a signed letter from such accountants, dated as of the date thereof, confirming on the basis of a review in accordance with the procedures set forth in their earlier letter that nothing has come to their attention during the period from a date not more than five business days before the date of this Sales Agreement, specified in the letter, to a date not more than five business days before such time, that would require any change in their letter referred to in the foregoing sentence. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Sales Agreement will comply only if they are in form and scope shall reasonably satisfactory to counsel for the Sales Manager, provided that any such documents, forms of which are annexed hereto, shall be deemed satisfactory to such counsel if substantially in such formrequest.
Appears in 1 contract
Conditions of the Sales Manager’s Obligations. The obligations of the Sales Manager to sell Common Shares are subject to the accuracy on the date of this Sales Agreement, and as of each Settlement Date, of the representations of the Fund and the Investment Adviser in this Sales Agreement, to the accuracy and completeness of all material statements made by the Fund and the Investment Adviser or any of their respective officers in any certificate delivered to the Sales Manager or its counsel pursuant to this Sales Agreement, to performance by the Fund and the Investment Adviser of their respective obligations under this Sales Agreement and to each of the following additional conditions:
(a) The Registration Statement must have become effective. The Prospectus must have been filed in accordance with Rule 497(b) or (h) or a certificate must have been filed in accordance with Rule 497(j), as the case may be, under the Securities Act.
(b) No order suspending the effectiveness of the Registration Statement may be in effect and no proceedings for such purpose may be pending before or, to the knowledge of counsel to the Sales Manager, threatened by the Commission, and any requests for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) must be complied with or waived to the reasonable satisfaction of the Sales Manager.
(c) Since the dates as of which information is given in the Registration Statement and the Prospectus, (i) there must not have been any material change in the Common Shares except as set forth in or contemplated by the Prospectus; (ii) there must not have been any material adverse change in the general affairs, prospects, management, business, financial condition or results of operations of the Fund or the Investment Adviser whether or not arising from transactions in the ordinary course of business as set forth in or contemplated by the Prospectus; (iii) the Fund must not have sustained any material loss or interference with its business from any court or from legislative or other governmental action, order or decree, whether foreign or domestic, or from any other occurrence not described in the Registration Statement and the Prospectus; and (iv) there must not have occurred any event that makes untrue or incorrect in any material respect any statement or information contained in the Registration Statement or the Prospectus or that is not reflected in the Registration Statement or the Prospectus but should be reflected therein in order to make the statements or information therein (in the case of the Prospectus, in light of the circumstances in which they were made) not misleading in any material respect; if, in the judgment of the Sales ManagerManger, any such development referred to in clause (i), (ii), (iii), or (iv) of this paragraph (c) makes it impracticable or inadvisable to consummate the sale and delivery of the Common Shares pursuant to this Sales Agreement at the then current market price of the Common Shares.
(d) Unless otherwise agreed to by the Sales Manager, the Sales Manager must have received as of each Settlement Date a certificate, dated such date, of the President or a Vice-President and the chief financial or accounting officer of each of the Fund and the Investment Adviser certifying (in their capacity as such officers and, with respect to clauses (ii), (iii) and (vi) below, on behalf of the Fund and the Investment Adviser, as the case may be) that (i) the signers have carefully examined the Registration Statement, the Prospectus and this Sales Agreement, (ii) the representations of the Fund (with respect to the certificates from such Fund officers) and the representations of the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) in this Sales Agreement are accurate on and as of the date of the certificate, (iii) there has not been any material adverse change in the general affairs, prospects, management, business, financial condition or results of operations of the Fund (with respect to the certificates from such Fund officers) or the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser), which change would materially and adversely affect the ability of the Fund or the Investment Adviser, as the case may be, to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement (with respect to the certificates from such officers of the Investment Adviser), whether or not arising from transactions in the ordinary course of business, (iv) with respect to the Fund only, no order suspending the effectiveness of the Registration Statement, prohibiting the sale of any of the Common Shares or otherwise having a material adverse effect on the Fund has been issued and no proceedings for any such purpose are pending before or, to the knowledge of such officers after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic, (v) no order having a material adverse effect on the ability of the Investment Adviser to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement, as the case may be, has been issued and no proceedings for any such purpose are pending before or, to the knowledge of the officers of the Investment Adviser after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic and (vi) each of the Fund (with respect to the certificates from such Fund officers) and the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) has performed all of its respective agreements that this Sales Underwriting Agreement requires it to perform by such Settlement Date (to the extent not waived in writing by the Sales Manager).
(e) Unless otherwise agreed to by the Sales Manager, the Sales Manager must have received as of the date of this Sales Agreement and each time referred to in Section 4(m) the opinions dated as of the date thereof substantially in the form of Schedules A and B to this Sales Agreement (modified in the case of times referred to in Section 4(m) as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to that date) from the counsel identified in each such Schedule.
(f) Unless otherwise agreed to by the Sales Manager, the Sales Manager must have received as of the date of this Sales Agreement and each time referred to in Section 4(m) from its counsel an opinion dated as of the date thereof with respect to the Fund, the Common Shares, the Registration Statement and the Prospectus, this Sales Agreement and the form and sufficiency of all proceedings taken in connection with the sale and delivery of the Common Shares. Such opinion and proceedings shall fulfill the requirements of this Section 5(f) only if such opinion and proceedings are satisfactory in all respects to the Sales Manager. The Fund and the Investment Adviser must have furnished to such counsel such documents as counsel may reasonably request for the purpose of enabling them to render such opinion.
(g) Unless otherwise agreed to by the Sales Manager, the Sales Manager must have received on the date of this Sales Agreement a signed letter, dated such date, substantially in the form of Schedule C D to this Sales Agreement from the independent registered public accounting firm designated in such Schedule. The Sales Manager also must have received as of each time referred to in Section 4(n) a signed letter from such accountants, dated as of the date thereof, confirming on the basis of a review in accordance with the procedures set forth in their earlier letter that nothing has come to their attention during the period from a date not more than five business days before the date of this Sales Agreement, specified in the letter, to a date not more than five business days before such time, that would require any change in their letter referred to in the foregoing sentence. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Sales Agreement will comply only if they are in form and scope reasonably satisfactory to counsel for the Sales Manager, provided that any such documents, forms of which are annexed hereto, shall be deemed satisfactory to such counsel if substantially in such form.
Appears in 1 contract
Samples: Sales Agreement (Gabelli Global Gold, Natural Resources & Income Trust)
Conditions of the Sales Manager’s Obligations. 4.1 The obligations of the Sales Manager to sell Common Shares are the Stock as provided herein shall be subject to the accuracy on accuracy, as of the date of this Sales Agreementhereof, and as of each Settlement DateDate contemplated under this Agreement, of the representations and warranties of the Fund and the Investment Adviser in this Sales AgreementCompany herein, to the accuracy and completeness of all material statements made by the Fund and the Investment Adviser or any of their respective officers in any certificate delivered to the Sales Manager or its counsel pursuant to this Sales Agreement, to performance by the Fund and the Investment Adviser Company of their respective its obligations under this Sales Agreement hereunder and to each of the following additional conditions:
(a) The post-effective amendment to the Registration Statement must contemplated by Section 3.1(a) shall have become been declared effective. The Prospectus must have been filed in accordance with Rule 497(b) or (h) or a certificate must have been filed in accordance with Rule 497(j), as the case may be, under the Securities Act.
(b) No stop order suspending the effectiveness of the Registration Statement may be in effect shall have been issued and no proceedings proceeding for such that purpose may be pending before shall have been instituted or, to the knowledge of counsel to the Company or the Sales Manager, threatened by the Commission, and any requests request of the Commission for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) must be shall have been complied with or waived to the reasonable satisfaction of the Sales Manager's reasonable satisfaction.
(b) The Sales Manager shall not have advised the Company that the Registration Statement or the Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact that in the Sales Manager's reasonable opinion is material, or omits to state a fact that in the Sales Manager's reasonable opinion is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) Since Except as contemplated in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there must shall not have been any material change in the Common Shares except as set forth in capital stock of the Company, or contemplated by the Prospectus; (ii) there must not have been any material adverse change change, or any development that may reasonably be expected to cause a material adverse change, in the general affairscondition (financial or other), business, prospects, management, business, financial condition net worth or results of operations of the Fund Company, or the Investment Adviser whether or not arising from transactions any adverse change in the ordinary course rating assigned to any securities of the Company.
(d) The Sales Manager shall have received at the date of the first sale of Stock hereunder (the "Commencement Date") and at every other date specified in Section 3.1(n) hereof, opinions of Company Counsel, dated as of the Commencement Date and dated as of such other date, respectively, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Indiana; the Company is duly qualified and in good standing as a foreign corporation in each jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or by the nature of its business makes such qualification necessary (including every jurisdiction in which it owns or leases property), except for such jurisdictions where the failure to so qualify would not have a Material Adverse Effect; to the best of such counsel's knowledge, other than as disclosed in the Registration Statement and the Prospectus, the Company has no significant subsidiary or subsidiaries; and the Company has all requisite corporate power and authority to own, lease, license and operate its assets and properties and conduct its business as set forth in or contemplated by the Prospectus; (iii) the Fund must not have sustained any material loss or interference with its business from any court or from legislative or other governmental action, order or decree, whether foreign or domestic, or from any other occurrence not now being conducted and as described in the Registration Statement and the ProspectusProspectus or any document incorporated by reference therein.
(ii) The certificates evidencing the Stock are in due and proper legal form and have been duly authorized for issuance by the Company; all of the outstanding shares of capital stock of the Company have been duly authorized and validly issued; and all of the outstanding shares of capital stock of the Company are fully paid and nonassessable and none of them was issued in violation of any preemptive or other similar right. The Stock, when issued and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable and none of them will have been issued in violation of any preemptive or other similar right. The Stock is the subject of an effective registration statement permitting its sale in the manner contemplated by this Agreement. Except (i) as disclosed in the Registration Statement and the Prospectus or (ii) with respect to partnership units in Duke Realty Limited Partnership that are exchangeable into capital stock of the Company, which partnership units have been issued in the ordinary course of the Company's property acquisition business, there is no outstanding option, warrant or other right calling for the issuance of, and, to the knowledge of such counsel, there is no commitment, plan or arrangement to issue, any share of capital stock, of the Company or any security convertible into or exercisable or exchangeable for, capital stock of the Company. The Stock conforms in all material respects to all statements relating thereto contained in the Registration Statement and the Prospectus.
(iii) The information set forth under the captions "The Company," "Common Stock," "Federal Income Tax Consequences," and other information in the Registration Statement and Prospectus to the extent that it constitutes matters of law, summaries of legal matters, documents, or legal conclusions, has been reviewed by such counsel and is correct in all material respects and presents the information called for by the Act and the Rules and Regulations in all material respects.
(iv) there must The descriptions contained or incorporated by reference in the Registration Statement and the Prospectus of statutes, legal and governmental proceedings, contracts and other documents are accurate, and insofar as such statements constitute a summary of documents referred to therein, matters of law or legal conclusions, are fair summaries of the material provisions thereof and accurately present the information required with respect to such documents and matters. All statutes, legal or governmental proceedings, and all agreements and other documents required to be described in the Registration Statement (or incorporated by reference therein) have been so described. All agreements and other documents known to such counsel to be required to be filed as exhibits to the Registration Statement have been so filed or incorporated by reference therein.
(v) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Stock by the Company. This Agreement has been duly and validly executed and delivered by the Company and constitutes the legal, valid and binding obligation of the Company, enforceable in accordance with its terms.
(vi) No filing, consent, approval, authorization, order, license, certificate, permit, registration, designation or filing with any court or governmental agency or body is required for the valid authorization, issue, delivery and sale of the Stock or the consummation by the Company of the transactions contemplated by this Agreement, except the registration under the Act of the Stock, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the sale of the Stock by the Sales Manager.
(vii) Neither the execution, delivery and performance of this Agreement by the Company nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Stock) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or any event which with notice or lapse of time, or both, would constitute a default) under, or require consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company pursuant to the terms of, any indenture, mortgage, deed of trust, note, franchise, license, permit or other agreement or instrument known to such counsel and to which the Company is a party or by which it or any of its properties or businesses are bound, or any judgment, decree, order, statute, rule or regulation or violate any provision of the charter or by-laws of the Company.
(viii) To the best of such counsel's knowledge, no default exists, and no event has occurred which with notice or lapse of time, or both, would constitute a default, in the due performance and observance by the Company of any term, covenant or condition of any agreement, instrument or other document to which the Company is a party or by which its assets or properties or businesses are bound or affected, except such defaults as would not have occurred a Material Adverse Effect.
(ix) To the best of such counsel's knowledge, the Company is not in violation of any event term or provision of its charter or by-laws and, except for violations as would not have a Material Adverse Effect, the Company is not in violation of any term or provision of any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable to it.
(x) To the best of such counsel's knowledge, there is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending or threatened against, or involving the assets, properties or businesses of, the Company which is reasonably likely to have a Material Adverse Effect.
(xi) The Registration Statement, when it became effective, the Prospectus, each of the documents incorporated by reference in the Registration Statement and the Prospectus and each amendment or supplement thereto, on the date of filing thereof with the Commission (and at each Settlement Date on or prior to the date of the opinion) (except for the financial statements and notes and schedules and other financial and statistical information included therein, as to which such counsel expresses no opinion) complied as to form in all material respects with the requirements of the Act and the Rules and Regulations and the Exchange Act and the rules and regulations promulgated thereunder, as the case may be.
(xii) The Registration Statement has become effective under the Act; if applicable, the filing of the Prospectus supplements have been made in the manner and within the time period required by the Rules and Regulations; and, to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that makes purpose have been instituted or are threatened or pending. The Stock has been approved for quotation on the Trading Market.
(xiii) The Company is not an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(xiv) To the best of such counsel's knowledge, the conditions for use of a Registration Statement on Form S-3 set forth in the General Instructions to Form S-3 have been satisfied with respect to the Company and the transactions contemplated by this Agreement and the Registration Statement. To the extent deemed advisable by such counsel, they may rely as to matters of fact on certificates of responsible officers of the Company and public officials. Copies of such certificates shall be furnished to the Sales Manager and its counsel. In addition, such counsel shall state that such counsel has participated in conferences with officers and other representatives of the Company and representatives of the independent certified public accountants of the Company, at which conferences the contents of the Registration Statement and the Prospectus and related matters were discussed and, although such counsel is not passing upon and does not assume any responsibility for any accuracy, completeness or fairness of the statements contained or incorporated by reference in the Registration Statement and the Prospectus (except as specified in the foregoing opinion), on the basis of the foregoing no facts have come to the attention of such counsel which have caused such counsel to believe that the Registration Statement at the time it (including each post-effective amendment thereto) became effective, contained any untrue statement of a material fact or incorrect omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus and any amendments or supplements thereto, on the date of filing thereof with the Commission and at the Commencement Date and at each Settlement Date on or prior to the date of the opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that such counsel need not express any material belief with respect any statement to the financial statements and schedules and other financial information included or information contained incorporated by reference in the Registration Statement or the Prospectus Prospectus).
(e) At the Commencement Date and at such other dates specified in Section 3.1(o) hereof, the Sales Manager shall have received a letter from KPMG LLP, independent public accountants for the Company, or that is not reflected in the Registration Statement or the Prospectus but should be reflected therein in order other independent accountants satisfactory to make the statements or information therein (in the case of the Prospectus, in light of the circumstances in which they were made) not misleading in any material respect; if, in the judgment of the Sales Manager, any such development referred dated the date of delivery thereof, in form and substance satisfactory to in clause (i), (ii), (iii), or (iv) of this paragraph (c) makes it impracticable or inadvisable to consummate the sale and delivery of the Common Shares pursuant to this Sales Agreement at the then current market price of the Common SharesManager.
(df) Unless otherwise agreed to by the Sales Manager, the The Sales Manager must shall have received as of each Settlement Date from the Company a certificate, dated such dateor certificates, signed by the Chairman of the Board, the President or a Vice-Vice President and by the chief principal financial or accounting officer of each the Company, dated as of the Fund Commencement Date and (unless the Investment Adviser certifying Company is not then selling Stock through the Sales Manager and has not requested the Sales Manager to sell Stock) dated as of the first business day of each calendar month thereafter (in their capacity as such officers andeach, with respect to clauses (iia "Certificate Date"), to the effect that, to the best of their knowledge based upon reasonable investigation:
(iiii) The representations and (vi) below, on behalf warranties of the Fund Company in this Agreement are true and correct, as if made at and as of the Investment Adviser, Commencement Date or the Certificate Date (as the case may be) that ), and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Commencement Date and each such Certificate Date (i) as the signers have carefully examined the Registration Statement, the Prospectus and this Sales Agreement, case may be);
(ii) No stop order suspending the representations effectiveness of the Fund (with respect Registration Statement has been issued, and no proceeding for that purpose has been instituted or, to the certificates from knowledge of such Fund officersofficer after due inquiry, is threatened, by the Commission;
(iii) and the representations of the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) in this Sales Agreement are accurate on and as of Since the date of this Agreement there has occurred no event required to be set forth in an amendment or supplement to the certificateRegistration Statement or Prospectus that has not been so set forth and there has been no document required to be filed under the Exchange Act and the rules and regulations of the Commission thereunder that upon such filing would be deemed to be incorporated by reference in the Prospectus that has not been so filed; and
(iv) Since the date of this Agreement, (iii) there has not been any material adverse change in the general affairs, prospects, managementassets or properties, business, financial condition or results of operations operations, prospects or condition (financial or otherwise) of the Fund (with respect to the certificates from such Fund officers) or the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser)Company, which change would materially and adversely affect the ability of the Fund has not been described in an amendment or the Investment Adviser, as the case may be, to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement (with respect to the certificates from such officers of the Investment Adviser), whether or not arising from transactions in the ordinary course of business, (iv) with respect to the Fund only, no order suspending the effectiveness of the Registration Statement, prohibiting the sale of any of the Common Shares or otherwise having a material adverse effect on the Fund has been issued and no proceedings for any such purpose are pending before or, to the knowledge of such officers after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic, (v) no order having a material adverse effect on the ability of the Investment Adviser to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement, as the case may be, has been issued and no proceedings for any such purpose are pending before or, to the knowledge of the officers of the Investment Adviser after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic and (vi) each of the Fund (with respect to the certificates from such Fund officers) and the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) has performed all of its respective agreements that this Sales Agreement requires it to perform by such Settlement Date (to the extent not waived in writing by the Sales Manager).
(e) Unless otherwise agreed to by the Sales Manager, the Sales Manager must have received as of the date of this Sales Agreement and each time referred to in Section 4(m) the opinions dated as of the date thereof substantially in the form of Schedules A and B to this Sales Agreement (modified in the case of times referred to in Section 4(m) as necessary to relate supplement to the Registration Statement or Prospectus (directly or by incorporation). In addition, on each Certificate Date the certificate shall also reconfirm that the shares of Stock sold during the immediately preceding month were duly and the Prospectus as amended and supplemented to that date) from the counsel identified in each such Schedule.
(f) Unless otherwise agreed to validly authorized by the Sales Manager, the Sales Manager must have received as of the date of this Sales Agreement Company and each time referred that all corporate action required to in Section 4(m) from its counsel an opinion dated as of the date thereof with respect to the Fund, the Common Shares, the Registration Statement and the Prospectus, this Sales Agreement and the form and sufficiency of all proceedings be taken in connection with the sale and delivery of the Common Shares. Such opinion and proceedings shall fulfill the requirements of this Section 5(f) only if such opinion and proceedings are satisfactory in all respects to the Sales Manager. The Fund and the Investment Adviser must have furnished to such counsel such documents as counsel may reasonably request for the purpose authorization, issuance and sale of enabling them to render such opinionStock had been validly and sufficiently taken.
(g) Unless otherwise agreed At the Commencement Date and on each Settlement Date, the Company shall have furnished to by the Sales Manager, the Sales Manager must have received on such appropriate further information, certificates and documents as the date of this Sales Agreement a signed letter, dated such date, substantially in the form of Schedule C to this Sales Agreement from the independent registered public accounting firm designated in such Schedule. The Sales Manager also must have received as of each time referred to in Section 4(n) a signed letter from such accountants, dated as of the date thereof, confirming on the basis of a review in accordance with the procedures set forth in their earlier letter that nothing has come to their attention during the period from a date not more than five business days before the date of this Sales Agreement, specified in the letter, to a date not more than five business days before such time, that would require any change in their letter referred to in the foregoing sentence. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Sales Agreement will comply only if they are in form and scope may reasonably satisfactory to counsel for the Sales Manager, provided that any such documents, forms of which are annexed hereto, shall be deemed satisfactory to such counsel if substantially in such formrequest.
Appears in 1 contract
Samples: Sales Agreement (Duke Realty Corp)
Conditions of the Sales Manager’s Obligations. 4.1 The obligations of the Sales Manager to sell Common Shares are the Stock as provided herein shall be subject to the accuracy on accuracy, as of the date of this Sales Agreementhereof, and as of each Settlement DateDate contemplated under this Agreement, of the representations and warranties of the Fund and the Investment Adviser in this Sales AgreementCompany herein, to the accuracy and completeness of all material statements made by the Fund and the Investment Adviser or any of their respective officers in any certificate delivered to the Sales Manager or its counsel pursuant to this Sales Agreement, to performance by the Fund and the Investment Adviser Company of their respective its obligations under this Sales Agreement hereunder and to each of the following additional conditions:
(a) The Registration Statement must shall have become been declared effective. The Prospectus must have been filed in accordance with Rule 497(b) or (h) or a certificate must have been filed in accordance with Rule 497(j), as the case may be, under the Securities Act.
(b) No stop order suspending the effectiveness of the Registration Statement may be in effect shall have been issued and no proceedings proceeding for such that purpose may be pending before shall have been instituted or, to the knowledge of counsel to the Company or the Sales Manager, threatened by the Commission, and any requests request of the Commission for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) must be shall have been complied with or waived to the reasonable satisfaction of the Sales Manager’s reasonable satisfaction.
(b) The Sales Manager shall not have advised the Company that the Registration Statement or the Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact that in the Sales Manager’s reasonable opinion is material, or omits to state a fact that in the Sales Manager’s reasonable opinion is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) Since Except as contemplated in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there must shall not have been any material change in the Common Shares except as set forth in capital stock of the Company, or contemplated by the Prospectus; (ii) there must not have been any material adverse change change, or any development that may reasonably be expected to cause a material adverse change, in the general affairs, prospects, managementfinancial condition, business, financial condition net worth or results of operations of the Fund Company, or the Investment Adviser whether or not arising from transactions any adverse change in the ordinary course of business as set forth in or contemplated by the Prospectus; (iii) the Fund must not have sustained rating assigned to any material loss or interference with its business from any court or from legislative or other governmental action, order or decree, whether foreign or domestic, or from any other occurrence not described in the Registration Statement and the Prospectus; and (iv) there must not have occurred any event that makes untrue or incorrect in any material respect any statement or information contained in the Registration Statement or the Prospectus or that is not reflected in the Registration Statement or the Prospectus but should be reflected therein in order to make the statements or information therein (in the case securities of the Prospectus, in light Company.
(1) The Sales Manager shall have received at the date of the circumstances first sale of Stock hereunder (the “Commencement Date”) and at every other date specified in which they were madeSection 3.1(n) not misleading in any material respect; if, in the judgment of above and such other times as may be reasonably requested by the Sales Manager, any such development referred to in clause (i)opinions of Company Counsel, (ii), (iii), or (iv) of this paragraph (c) makes it impracticable or inadvisable to consummate the sale and delivery dated as of the Common Shares pursuant to this Sales Agreement at Commencement Date and dated as of such other date, in the then current market price form of the Common SharesSchedule A hereto.
(d2) Unless otherwise agreed The Sales Manager shall have received a letter from Company Counsel authorizing the Sales Manager to rely on the opinion on tax matters delivered by Company Counsel as Exhibit 8.1 to the Registration Statement.
(e) On the Commencement Date and at such other dates specified in Section 3.1(o) above and at such other times as may be reasonably requested by the Sales Manager, the Sales Manager must shall have received as a “comfort letter” from McGladrey & Pxxxxx LLP, independent public accountants for the Company, or other independent accountants then retained by the Company, dated the date of each Settlement Date delivery thereof, in form and substance satisfactory to the Sales Manager.
(f) The Sales Manager shall have received from the Company a certificate, dated such dateor certificates, signed by the Chief Financial Officer and President or Chief Executive Officer or any Vice President of the President or a Vice-President Company, dated as of the Commencement Date and (unless the chief financial or accounting officer Company is not then selling Stock through the Sales Manager and has not requested the Sales Manager to sell Stock) dated as of the first business day of each calendar month thereafter (each, a “Certificate Date”), to the effect that, to the best of their knowledge based upon reasonable investigation:
(i) The representations and warranties of the Fund Company in this Agreement are true and the Investment Adviser certifying (in their capacity correct, as such officers and, with respect to clauses (ii), (iii) if made at and (vi) below, on behalf as of the Fund and Commencement Date or the Investment Adviser, Certificate Date (as the case may be) that ), and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Commencement Date and each such Certificate Date (i) as the signers have carefully examined the Registration Statement, the Prospectus and this Sales Agreement, case may be);
(ii) No stop order suspending the representations effectiveness of the Fund (with respect Registration Statement has been issued, and no proceeding for that purpose has been instituted or, to the certificates from knowledge of such Fund officersofficer after due inquiry, is threatened, by the Commission;
(iii) and the representations of the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) in this Sales Agreement are accurate on and as of Since the date of this Agreement there has occurred no event required to be set forth in an amendment or supplement to the certificateRegistration Statement or Prospectus that has not been so set forth and there has been no document required to be filed under the Exchange Act and the rules and regulations of the Commission thereunder that upon such filing would be deemed to be incorporated by reference in the Prospectus that has not been so filed; and
(iv) Since the date of this Agreement, (iii) there has not been any material adverse change in the general affairs, prospects, managementassets or properties, business, financial condition or results of operations or financial condition of the Fund (with respect Company, which has not been described in an amendment or supplement to the certificates from such Fund officers) Registration Statement or the Investment Adviser Prospectus (with respect to the certificates from such officers of the Investment Adviser), which change would materially and adversely affect the ability of the Fund directly or the Investment Adviser, as the case may be, to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement (with respect to the certificates from such officers of the Investment Adviser), whether or not arising from transactions in the ordinary course of business, (iv) with respect to the Fund only, no order suspending the effectiveness of the Registration Statement, prohibiting the sale of any of the Common Shares or otherwise having a material adverse effect on the Fund has been issued and no proceedings for any such purpose are pending before or, to the knowledge of such officers after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic, (v) no order having a material adverse effect on the ability of the Investment Adviser to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement, as the case may be, has been issued and no proceedings for any such purpose are pending before or, to the knowledge of the officers of the Investment Adviser after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic and (vi) each of the Fund (with respect to the certificates from such Fund officers) and the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) has performed all of its respective agreements that this Sales Agreement requires it to perform by such Settlement Date (to the extent not waived in writing by the Sales Managerincorporation).
(eg) Unless otherwise agreed to by If required, the Sales Manager’s participation in the distribution of Stock contemplated by this Agreement shall have been reviewed and found acceptable by the NASD pursuant to FINRA Rule 5110, the Corporate Financing Rule. In addition, on each Certificate Date the certificate shall also reconfirm that the shares of Stock sold during the immediately preceding month were duly and validly authorized by the Company and that all corporate action required to be taken for the authorization issuance and sale of such shares of Stock had been validly and sufficiently taken.
(h) On each Settlement Date, the Company shall have furnished to the Sales Manager must have received such appropriate further information, certificates and documents as of the date of this Sales Agreement and each time referred to in Section 4(m) the opinions dated as of the date thereof substantially in the form of Schedules A and B to this Sales Agreement (modified in the case of times referred to in Section 4(m) as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to that date) from the counsel identified in each such Schedule.
(f) Unless otherwise agreed to by the Sales Manager, the Sales Manager must have received as of may reasonably request. All such opinions, certificates, letters and other documents will be in compliance with the date of this Sales Agreement and each time referred to provisions hereof only if they are reasonably satisfactory in Section 4(m) from its counsel an opinion dated as of the date thereof with respect to the Fund, the Common Shares, the Registration Statement and the Prospectus, this Sales Agreement and the form and sufficiency of all proceedings taken in connection with the sale and delivery of the Common Shares. Such opinion and proceedings shall fulfill the requirements of this Section 5(f) only if such opinion and proceedings are satisfactory in all respects substance to the Sales Manager. The Fund and the Investment Adviser must have furnished to such counsel such documents as counsel may reasonably request for the purpose of enabling them to render such opinion.
(g) Unless otherwise agreed to by the Sales Manager, Company will furnish the Sales Manager must have received on with such conformed copies of such opinions, certificates, letters and other documents, as the date of this Sales Agreement a signed letter, dated such date, substantially in the form of Schedule C to this Sales Agreement from the independent registered public accounting firm designated in such Schedule. The Sales Manager also must have received as of each time referred to in Section 4(n) a signed letter from such accountants, dated as of the date thereof, confirming on the basis of a review in accordance with the procedures set forth in their earlier letter that nothing has come to their attention during the period from a date not more than five business days before the date of this Sales Agreement, specified in the letter, to a date not more than five business days before such time, that would require any change in their letter referred to in the foregoing sentence. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Sales Agreement will comply only if they are in form and scope shall reasonably satisfactory to counsel for the Sales Manager, provided that any such documents, forms of which are annexed hereto, shall be deemed satisfactory to such counsel if substantially in such formrequest.
Appears in 1 contract
Samples: Sales Agreement (CapLease, Inc.)
Conditions of the Sales Manager’s Obligations. 4.1 The obligations of the Sales Manager to sell Common the Shares are as provided herein shall be subject to the accuracy on accuracy, as of the date of this Sales Agreementhereof, and as of each Settlement DateDate contemplated under this Agreement, of the representations and warranties of the Fund and the Investment Adviser in this Sales AgreementCompany herein, to the accuracy and completeness of all material statements made by the Fund and the Investment Adviser or any of their respective officers in any certificate delivered to the Sales Manager or its counsel pursuant to this Sales Agreement, to performance by the Fund and the Investment Adviser Company of their respective its obligations under this Sales Agreement hereunder and to each of the following additional conditions:
(a) The post-effective amendment to the Registration Statement must contemplated by Section 3.1(a) above shall have become been declared effective. The Prospectus must have been filed in accordance with Rule 497(b) or (h) or a certificate must have been filed in accordance with Rule 497(j), as the case may be, under the Securities Act.
(b) No stop order suspending the effectiveness of the Registration Statement may be in effect shall have been issued and no proceedings proceeding for such that purpose may be pending before shall have been instituted or, to the knowledge of counsel to the Company or the Sales Manager, threatened by the Commission, and any requests request of the Commission for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) must be shall have been complied with or waived to the Sales Manager’s reasonable satisfaction of satisfaction.
(b) The Sales Manager shall not have advised the Company that the disclosures in the Registration Statement or the Prospectus are not reasonably acceptable to the Sales Manager.
(c) Since Except as contemplated in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there must not have been any material change in the Common Shares except as set forth in or contemplated by the Prospectus; (ii) there must shall not have been any material adverse change in the general affairsshares of beneficial interest of the Company, prospectsor any material adverse change, managementor any development that may reasonably be expected to cause a material adverse change, in the condition (financial or other), business, financial condition net worth or results of operations of the Fund Company, or the Investment Adviser whether or not arising from transactions any adverse change in the ordinary course of business as set forth in or contemplated by the Prospectus; (iii) the Fund must not have sustained rating assigned to any material loss or interference with its business from any court or from legislative or other governmental action, order or decree, whether foreign or domestic, or from any other occurrence not described in the Registration Statement and the Prospectus; and (iv) there must not have occurred any event that makes untrue or incorrect in any material respect any statement or information contained in the Registration Statement or the Prospectus or that is not reflected in the Registration Statement or the Prospectus but should be reflected therein in order to make the statements or information therein (in the case securities of the Prospectus, in light Company.
(1) The Sales Manager shall have received at the date of the circumstances first sale of Shares hereunder (the “Commencement Date”) and at every other date specified in which they were madeSection 3.1(n) not misleading in any material respect; ifabove, opinions of Company Counsel, dated as of the Commencement Date and dated as of such other date, in the judgment form of the Sales Manager, any such development referred to in clause (i), (ii), (iii), or (iv) of this paragraph (c) makes it impracticable or inadvisable to consummate the sale and delivery of the Common Shares pursuant to this Sales Agreement at the then current market price of the Common SharesSchedule A hereto.
(d2) Unless otherwise agreed to by The Sales Manager shall have received a letter from Company Counsel authorizing the Sales ManagerManager to rely on the opinion on tax matters delivered by Company Counsel as Exhibit 8.1 to the Registration Statement.
(e) At the Commencement Date and at such other dates specified in Section 3.1(o) above, the Sales Manager must shall have received as a “comfort letter” from [Accountant], independent public accountants for the Company, or other independent accountants then retained by the Company, dated the date of each Settlement Date delivery thereof, in form and substance satisfactory to the Sales Manager.
(f) The Sales Manager shall have received from the Company a certificate, dated such dateor certificates, signed by the Chief Financial Officer and President or Chief Executive Officer or any Vice President of the President or a Vice-President Company, dated as of the Commencement Date and (unless the chief financial or accounting officer Company is not then selling Shares through the Sales Manager and has not requested the Sales Manager to sell Shares) dated as of the first business day of each calendar month thereafter (each a “Certificate Date”), to the effect that, to the best of their knowledge based upon reasonable investigation:
(i) The representations and warranties of the Fund Company in this Agreement are true and the Investment Adviser certifying (in their capacity correct, as such officers and, with respect to clauses (ii), (iii) if made at and (vi) below, on behalf as of the Fund and Commencement Date or the Investment Adviser, Certificate Date (as the case may be) that ), and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Commencement Date and each such Certificate Date (i) as the signers have carefully examined the Registration Statement, the Prospectus and this Sales Agreement, case may be);
(ii) No stop order suspending the representations effectiveness of the Fund (with respect Registration Statement has been issued, and no proceeding for that purpose has been instituted or, to the certificates from knowledge of such Fund officersofficer after due inquiry, is threatened, by the Commission;
(iii) and the representations of the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) in this Sales Agreement are accurate on and as of Since the date of this Agreement there has occurred no event required to be set forth in an amendment or supplement to the certificateRegistration Statement or Prospectus that has not been so set forth and there has been no document required to be filed under the Exchange Act and the rules and regulations of the Commission thereunder that upon such filing would be deemed to be incorporated by reference in the Prospectus that has not been so filed; and
(iv) Since the date of this Agreement, (iii) there has not been any material adverse change in the general affairs, prospects, managementassets or properties, business, financial condition or results of operations operations, or condition (financial or otherwise) of the Fund (with respect Company, which has not been described in an amendment or supplement to the certificates from such Fund officers) Registration Statement or the Investment Adviser Prospectus (with respect to the certificates from such officers of the Investment Adviser), which change would materially and adversely affect the ability of the Fund directly or the Investment Adviser, as the case may be, to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement (with respect to the certificates from such officers of the Investment Adviser), whether or not arising from transactions in the ordinary course of business, (iv) with respect to the Fund only, no order suspending the effectiveness of the Registration Statement, prohibiting the sale of any of the Common Shares or otherwise having a material adverse effect on the Fund has been issued and no proceedings for any such purpose are pending before or, to the knowledge of such officers after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic, (v) no order having a material adverse effect on the ability of the Investment Adviser to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement, as the case may be, has been issued and no proceedings for any such purpose are pending before or, to the knowledge of the officers of the Investment Adviser after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic and (vi) each of the Fund (with respect to the certificates from such Fund officers) and the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) has performed all of its respective agreements that this Sales Agreement requires it to perform by such Settlement Date (to the extent not waived in writing by the Sales Managerincorporation).
(eg) Unless otherwise agreed At the Commencement Date and on each Settlement Date, the Company shall have furnished to by the Sales Manager, the Sales Manager must have received such appropriate further information, certificates and documents as of the date of this Sales Agreement and each time referred to in Section 4(m) the opinions dated as of the date thereof substantially in the form of Schedules A and B to this Sales Agreement (modified in the case of times referred to in Section 4(m) as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to that date) from the counsel identified in each such Schedule.
(f) Unless otherwise agreed to by the Sales Manager, the Sales Manager must have received as of the date of this Sales Agreement may reasonably request. All such opinions, certificates, letters and each time referred to other documents will be in Section 4(m) from its counsel an opinion dated as of the date thereof with respect to the Fund, the Common Shares, the Registration Statement and the Prospectus, this Sales Agreement and the form and sufficiency of all proceedings taken in connection compliance with the sale and delivery of the Common Shares. Such opinion and proceedings shall fulfill the requirements of this Section 5(f) provisions hereof only if such opinion and proceedings they are satisfactory in all respects form and substance to the Sales Manager. The Fund and the Investment Adviser must have furnished to such counsel such documents as counsel may reasonably request for the purpose of enabling them to render such opinion.
(g) Unless otherwise agreed to by the Sales Manager, Company will furnish the Sales Manager must have received on with such conformed copies of such opinions, certificates, letters and other documents, as the date of this Sales Agreement a signed letter, dated such date, substantially in the form of Schedule C to this Sales Agreement from the independent registered public accounting firm designated in such Schedule. The Sales Manager also must have received as of each time referred to in Section 4(n) a signed letter from such accountants, dated as of the date thereof, confirming on the basis of a review in accordance with the procedures set forth in their earlier letter that nothing has come to their attention during the period from a date not more than five business days before the date of this Sales Agreement, specified in the letter, to a date not more than five business days before such time, that would require any change in their letter referred to in the foregoing sentence. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Sales Agreement will comply only if they are in form and scope shall reasonably satisfactory to counsel for the Sales Manager, provided that any such documents, forms of which are annexed hereto, shall be deemed satisfactory to such counsel if substantially in such formrequest.
Appears in 1 contract
Samples: Sales Agreement (Brandywine Operating Partnership Lp /Pa)
Conditions of the Sales Manager’s Obligations. 4.1 The obligations of the Sales Manager to sell Common Shares are the Stock as provided herein shall be subject to the accuracy on accuracy, as of the date of this Sales Agreementhereof, and as of each Settlement DateDate contemplated under this Agreement, of the representations and warranties of the Fund and the Investment Adviser in this Sales AgreementCompany herein, to the accuracy and completeness of all material statements made by the Fund and the Investment Adviser or any of their respective officers in any certificate delivered to the Sales Manager or its counsel pursuant to this Sales Agreement, to performance by the Fund and the Investment Adviser Company of their respective its obligations under this Sales Agreement hereunder and to each of the following additional conditions:
(a) The Registration Statement must have become effective. The Prospectus must have been filed in accordance with Rule 497(b) or (h) or a certificate must have been filed in accordance with Rule 497(j), as the case may be, under the Securities Act.
(b) No stop order suspending the effectiveness of the Registration Statement may be in effect shall have been issued and no proceedings proceeding for such that purpose may be pending before shall have been instituted or, to the knowledge of counsel to the Company or the Sales Manager, threatened by the Commission, and any requests request of the Commission for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) must be shall have been complied with or waived to the Sales Manager's reasonable satisfaction of satisfaction.
(b) The Sales Manager shall not have advised the Company that the disclosures in the Registration Statement or the Prospectus are not reasonably acceptable to the Sales Manager.
(c) Since Except as contemplated in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there must shall not have been any material change in the Common Shares except as set forth in capital stock of the Company, or contemplated by the Prospectus; (ii) there must not have been any material adverse change change, or any development that may reasonably be expected to cause a change, in the general affairs, prospects, managementcondition (financial or other), business, financial condition net worth or results of operations of the Fund Company, or the Investment Adviser whether or not arising from transactions any adverse change in the ordinary course of business as set forth in or contemplated by the Prospectus; (iii) the Fund must not have sustained rating assigned to any material loss or interference with its business from any court or from legislative or other governmental action, order or decree, whether foreign or domestic, or from any other occurrence not described in the Registration Statement and the Prospectus; and (iv) there must not have occurred any event that makes untrue or incorrect in any material respect any statement or information contained in the Registration Statement or the Prospectus or that is not reflected in the Registration Statement or the Prospectus but should be reflected therein in order to make the statements or information therein (in the case securities of the ProspectusCompany that has had a Material Adverse Effect.
(1) The Sales Manager shall have received at the first Settlement Date hereunder (the "Commencement Date") and at every other date specified in Section 3.1(n) above, in light opinions of Company Counsel, dated as of the circumstances in which they were made) not misleading in any material respect; ifCommencement Date and dated as of such other date, in the judgment form of the Sales Manager, any such development referred to in clause (i), (ii), (iii), or (iv) of this paragraph (c) makes it impracticable or inadvisable to consummate the sale and delivery of the Common Shares pursuant to this Sales Agreement at the then current market price of the Common SharesSchedule A hereto.
(d2) Unless otherwise agreed to by The Sales Manager shall have received a letter from Company Counselauthorizing the Sales ManagerManager to rely on the opinion on tax matters delivered by Company Counsel as Exhibit 8.1 to the Registration Statement.
(e) At the Commencement Date and at such other dates specified in Section 3.1(o) above, the Sales Manager must shall have received as a "comfort letter" from KPMG LLP, independent public accountants for the Company, or other independent accountants then retained by the Company, dated the date of each Settlement Date delivery thereof, in form and substance satisfactory to the Sales Manager.
(f) The Sales Manager shall have received from the Company a certificate, dated such dateor certificates, signed by the Chief Financial Officer and President or Chief Executive Officer or any Vice President of the President or a Vice-President Company, dated as of the Commencement Date and (unless the chief financial or accounting officer Company is not then selling Stock through the Sales Manager and has not requested the Sales Manager to sell Stock) dated as of the first business day of each calendar month thereafter (each, a "Certificate Date"), to the effect that, to the best of their knowledge based upon reasonable investigation:
(i) The representations and warranties of the Fund Company in this Agreement are true and the Investment Adviser certifying (in their capacity correct, as such officers and, with respect to clauses (ii), (iii) if made at and (vi) below, on behalf as of the Fund and Commencement Date or the Investment Adviser, Certificate Date (as the case may be) that (i) ), and the signers have carefully examined Company has complied with all the Registration Statement, agreements and satisfied all the Prospectus and this Sales Agreement, (ii) the representations of the Fund (with respect conditions on its part to be performed or satisfied at or prior to the certificates from Commencement Date and each such Fund officers) and the representations of the Investment Adviser Certificate Date (with respect to the certificates from such officers of the Investment Adviser) in this Sales Agreement are accurate on and as of the date of the certificate, (iii) there has not been any material adverse change in the general affairs, prospects, management, business, financial condition or results of operations of the Fund (with respect to the certificates from such Fund officers) or the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser), which change would materially and adversely affect the ability of the Fund or the Investment Adviser, as the case may be, to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement );
(with respect to the certificates from such officers of the Investment Adviser), whether or not arising from transactions in the ordinary course of business, (ivii) with respect to the Fund only, no No stop order suspending the effectiveness of the Registration Statement, prohibiting the sale of any of the Common Shares or otherwise having a material adverse effect on the Fund Statement has been issued issued, and no proceedings proceeding for any such that purpose are pending before has been instituted or, to the knowledge of such officers officer after reasonable investigationdue inquiry, threatened is threatened, by the Commission Commission;
(iii) Since the date of this Agreement there has occurred no event required to be set forth in an amendment or any other regulatory body, whether foreign supplement to the Registration Statement or domestic, (v) Prospectus that has not been so set forth and there has been no order having a material adverse effect on document required to be filed under the ability Exchange Act and the rules and regulations of the Investment Adviser Commission thereunder that upon such filing would be deemed to fulfill its obligations under be incorporated by reference in the Prospectus that has not been so filed; and
(iv) Since the date of this Sales Agreement or the Investment Advisory Agreement, as there has not been any change in the case may beassets or properties, business, results of operations, or condition (financial or otherwise) of the Company that has had a Material Adverse Effect, which has not been issued and no proceedings for any such purpose are pending before or, described in an amendment or supplement to the knowledge of the officers of the Investment Adviser after reasonable investigation, threatened Registration Statement or Prospectus (directly or by the Commission or any other regulatory body, whether foreign or domestic and (vi) each of the Fund (with respect to the certificates from such Fund officers) and the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) has performed all of its respective agreements that this Sales Agreement requires it to perform by such Settlement Date (to the extent not waived in writing by the Sales Managerincorporation).
(eg) Unless otherwise agreed At the Commencement Date and on each Settlement Date, the Company shall have furnished to by the Sales Manager, the Sales Manager must have received such appropriate further information, certificates and documents as of the date of this Sales Agreement and each time referred to in Section 4(m) the opinions dated as of the date thereof substantially in the form of Schedules A and B to this Sales Agreement (modified in the case of times referred to in Section 4(m) as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to that date) from the counsel identified in each such ScheduleManager may reasonably request.
(fh) Unless otherwise agreed to The Sales Manager's participation in the distribution of Stock contemplated by this Agreement shall have been reviewed and found acceptable by the Sales ManagerNASD pursuant to NASD Rule 2710 (Corporate Financing Rule). All such opinions, the Sales Manager must have received as of the date of this Sales Agreement certificates, letters and each time referred to other documents will be in Section 4(m) from its counsel an opinion dated as of the date thereof with respect to the Fund, the Common Shares, the Registration Statement and the Prospectus, this Sales Agreement and the form and sufficiency of all proceedings taken in connection compliance with the sale and delivery of the Common Shares. Such opinion and proceedings shall fulfill the requirements of this Section 5(f) provisions hereof only if such opinion and proceedings they are satisfactory in all respects form and substance to the Sales Manager. The Fund and the Investment Adviser must have furnished to such counsel such documents as counsel may reasonably request for the purpose of enabling them to render such opinion.
(g) Unless otherwise agreed to by the Sales Manager, Company will furnish the Sales Manager must have received on with such conformed copies of such opinions, certificates, letters and other documents, as the date of this Sales Agreement a signed letter, dated such date, substantially in the form of Schedule C to this Sales Agreement from the independent registered public accounting firm designated in such Schedule. The Sales Manager also must have received as of each time referred to in Section 4(n) a signed letter from such accountants, dated as of the date thereof, confirming on the basis of a review in accordance with the procedures set forth in their earlier letter that nothing has come to their attention during the period from a date not more than five business days before the date of this Sales Agreement, specified in the letter, to a date not more than five business days before such time, that would require any change in their letter referred to in the foregoing sentence. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Sales Agreement will comply only if they are in form and scope shall reasonably satisfactory to counsel for the Sales Manager, provided that any such documents, forms of which are annexed hereto, shall be deemed satisfactory to such counsel if substantially in such formrequest.
Appears in 1 contract
Samples: Sales Agreement (Windrose Medical Properties Trust)
Conditions of the Sales Manager’s Obligations. 4.1 The obligations of the Sales Manager to sell Common Shares are the Stock as provided herein shall be subject to the accuracy on accuracy, as of the date of this Sales Agreementhereof, and as of each Settlement DateDate contemplated under this Agreement, of the representations and warranties of the Fund and the Investment Adviser in this Sales AgreementCompany herein, to the accuracy and completeness of all material statements made by the Fund and the Investment Adviser or any of their respective officers in any certificate delivered to the Sales Manager or its counsel pursuant to this Sales Agreement, to performance by the Fund and the Investment Adviser Company of their respective its obligations under this Sales Agreement hereunder and to each of the following additional conditions:
(a) The Registration Statement must contemplated by Section 3.1(a) shall have become been declared effective. The Prospectus must have been filed in accordance with Rule 497(b) or (h) or a certificate must have been filed in accordance with Rule 497(j), as the case may be, under the Securities Act.
(b) No stop order suspending the effectiveness of the Registration Statement may be in effect shall have been issued and no proceedings proceeding for such that purpose may be pending before shall have been instituted or, to the knowledge of counsel to the Company or the Sales Manager, threatened by the Commission, and any requests request of the Commission for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) must be shall have been complied with or waived to the Sales Manager’s reasonable satisfaction of satisfaction. The Stock shall have been listed for trading on the Trading Market.
(b) The Sales Manager shall not have advised the Company that the disclosures in the Registration Statement or the Prospectus, or any amendment or supplement thereto, are not reasonably acceptable to the Sales Manager.
(c) Since Except as contemplated in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there must not have been any material change in the Common Shares except as set forth in or contemplated by the Prospectus; (ii) there must shall not have been any material adverse change in the general affairscapital stock of the Company, prospectsor any material adverse change, managementor any development that may reasonably be expected to cause a material adverse change, in the condition (financial or other), business, financial condition net worth or results of operations of the Fund Company, or the Investment Adviser whether or not arising from transactions any adverse change in the ordinary course of business as set forth in or contemplated by the Prospectus; (iii) the Fund must not have sustained rating assigned to any material loss or interference with its business from any court or from legislative or other governmental action, order or decree, whether foreign or domestic, or from any other occurrence not described in the Registration Statement and the Prospectus; and (iv) there must not have occurred any event that makes untrue or incorrect in any material respect any statement or information contained in the Registration Statement or the Prospectus or that is not reflected in the Registration Statement or the Prospectus but should be reflected therein in order to make the statements or information therein (in the case securities of the Prospectus, in light Company.
(1) The Sales Manager shall have received at the date of the circumstances first sale of Stock hereunder (the “Commencement Date”) and at every other date specified in which they were madeSection 3.1(n) not misleading in any material respect; ifhereof, opinions of Company Counsel, dated as of the Commencement Date and dated as of such other date, in the judgment form of the Sales Manager, any such development referred to in clause (i), (ii), (iii), or (iv) of this paragraph (c) makes it impracticable or inadvisable to consummate the sale and delivery of the Common Shares pursuant to this Sales Agreement at the then current market price of the Common SharesExhibit A hereto.
(d2) Unless otherwise agreed to by The Sales Manager shall have received a letter from Company Counsel authorizing the Sales ManagerManager to rely on the opinion on tax matters delivered by Company Counsel as Exhibit 8.1 to the Registration Statement.
(e) At the Commencement Date and at such other dates specified in Section 3.1(o) hereof, the Sales Manager must shall have received as a “comfort letter” from Ernst & Young LLP, independent public accountants for the Company, or other independent accountants then retained by the Company, dated the date of each Settlement Date delivery thereof, in form and substance satisfactory to the Sales Manager.
(f) The Sales Manager shall have received from the Company a certificate, dated such dateor certificates, signed by the Chief Financial Officer and Executive Vice President of the President or a Vice-President Company, dated as of the Commencement Date and (unless the chief financial or accounting officer Company is not then selling Stock through the Sales Manager and has not requested the Sales Manager to sell Stock) dated as of the first business day of each calendar month thereafter (each, a “Certificate Date”), to the effect that, to the best of their knowledge based upon reasonable investigation:
(i) The representations and warranties of the Fund Company in this Agreement are true and the Investment Adviser certifying (in their capacity correct, as such officers and, with respect to clauses (ii), (iii) if made at and (vi) below, on behalf as of the Fund and Commencement Date or the Investment Adviser, Certificate Date (as the case may be) that ), and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Commencement Date and each such Certificate Date (i) as the signers have carefully examined the Registration Statement, the Prospectus and this Sales Agreement, case may be);
(ii) No stop order suspending the representations effectiveness of the Fund (with respect Registration Statement has been issued, and no proceeding for that purpose has been instituted or, to the certificates from knowledge of such Fund officersofficer after due inquiry, is threatened, by the Commission;
(iii) and the representations of the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) in this Sales Agreement are accurate on and as of Since the date of this Agreement there has occurred no event required to be set forth in an amendment or supplement to the certificateRegistration Statement or Prospectus that has not been so set forth and there has been no document required to be filed under the Exchange Act and the rules and regulations of the Commission thereunder that upon such filing would be deemed to be incorporated by reference in the Prospectus that has not been so filed; and
(iv) Since the date of this Agreement, (iii) there has not been any material adverse change in the general affairs, prospects, managementassets or properties, business, financial condition or results of operations or condition (financial or otherwise) of the Fund (with respect Company, which has not been described in an amendment or supplement to the certificates from such Fund officers) Registration Statement or the Investment Adviser Prospectus (with respect to the certificates from such officers of the Investment Adviser), which change would materially and adversely affect the ability of the Fund directly or the Investment Adviser, as the case may be, to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement (with respect to the certificates from such officers of the Investment Adviser), whether or not arising from transactions in the ordinary course of business, (iv) with respect to the Fund only, no order suspending the effectiveness of the Registration Statement, prohibiting the sale of any of the Common Shares or otherwise having a material adverse effect on the Fund has been issued and no proceedings for any such purpose are pending before or, to the knowledge of such officers after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic, (v) no order having a material adverse effect on the ability of the Investment Adviser to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement, as the case may be, has been issued and no proceedings for any such purpose are pending before or, to the knowledge of the officers of the Investment Adviser after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic and (vi) each of the Fund (with respect to the certificates from such Fund officers) and the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) has performed all of its respective agreements that this Sales Agreement requires it to perform by such Settlement Date (to the extent not waived in writing by the Sales Managerincorporation).
(eg) Unless otherwise agreed At the Commencement Date and on each Settlement Date, the Company shall have furnished to by the Sales Manager, the Sales Manager must have received such appropriate further information, certificates and documents as of the date of this Sales Agreement and each time referred to in Section 4(m) the opinions dated as of the date thereof substantially in the form of Schedules A and B to this Sales Agreement (modified in the case of times referred to in Section 4(m) as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to that date) from the counsel identified in each such Schedule.
(f) Unless otherwise agreed to by the Sales Manager, the Sales Manager must have received as of the date of this Sales Agreement may reasonably request. All such opinions, certificates, letters and each time referred to other documents will be in Section 4(m) from its counsel an opinion dated as of the date thereof with respect to the Fund, the Common Shares, the Registration Statement and the Prospectus, this Sales Agreement and the form and sufficiency of all proceedings taken in connection compliance with the sale and delivery of the Common Shares. Such opinion and proceedings shall fulfill the requirements of this Section 5(f) provisions hereof only if such opinion and proceedings they are satisfactory in all respects form and substance to the Sales Manager. The Fund and the Investment Adviser must have furnished to such counsel such documents as counsel may reasonably request for the purpose of enabling them to render such opinion.
(g) Unless otherwise agreed to by the Sales Manager, Company will furnish the Sales Manager must have received on with such conformed copies of such opinions, certificates, letters and other documents as the date of this Sales Agreement a signed letter, dated such date, substantially in the form of Schedule C to this Sales Agreement from the independent registered public accounting firm designated in such Schedule. The Sales Manager also must have received as of each time referred to in Section 4(n) a signed letter from such accountants, dated as of the date thereof, confirming on the basis of a review in accordance with the procedures set forth in their earlier letter that nothing has come to their attention during the period from a date not more than five business days before the date of this Sales Agreement, specified in the letter, to a date not more than five business days before such time, that would require any change in their letter referred to in the foregoing sentence. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Sales Agreement will comply only if they are in form and scope shall reasonably satisfactory to counsel for the Sales Manager, provided that any such documents, forms of which are annexed hereto, shall be deemed satisfactory to such counsel if substantially in such formrequest.
Appears in 1 contract
Conditions of the Sales Manager’s Obligations. 4.1 The obligations of the Sales Manager to sell the Common Shares are Stock as provided herein shall be subject to the accuracy on accuracy, as of the date of this Sales Agreementhereof, and as of each Settlement DateDate contemplated under this Agreement, of the representations and warranties of the Fund and the Investment Adviser in this Sales AgreementCompany herein, to the accuracy and completeness of all material statements made by the Fund and the Investment Adviser or any of their respective officers in any certificate delivered to the Sales Manager or its counsel pursuant to this Sales Agreement, to performance by the Fund and the Investment Adviser Company of their respective its obligations under this Sales Agreement hereunder and to each of the following additional conditions:
(a) The Registration Statement must have become has been declared effective. The Prospectus must have been filed in accordance with Rule 497(b) or (h) or a certificate must have been filed in accordance with Rule 497(j), as the case may be, under the Securities Act.
(b) No stop order suspending the effectiveness of the Registration Statement may be in effect shall have been issued and no proceedings proceeding for such that purpose may be pending before shall have been instituted or, to the knowledge of counsel to the Company or the Sales Manager, threatened by the Commission, and any requests request of the Commission for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) must be shall have been complied with or waived to the Sales Manager’s reasonable satisfaction of satisfaction. The Common Stock shall have been listed for trading on the Trading Market.
(b) The Sales Manager shall not have advised the Company that the disclosures in the Registration Statement or the Prospectus, or any amendment or supplement thereto, are not reasonably acceptable to the Sales Manager.
(c) Since Except as contemplated in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there must not have been any material change in the Common Shares except as set forth in or contemplated by the Prospectus; (ii) there must shall not have been any material adverse change in the general affairscapital stock of the Company, prospectsor any material adverse change, managementor any development that may reasonably be expected to cause a material adverse change, in the condition (financial or other), business, financial condition net worth or results of operations of the Fund Company, or the Investment Adviser whether or not arising from transactions any adverse change in the ordinary course of business as set forth in or contemplated by the Prospectus; (iii) the Fund must not have sustained rating assigned to any material loss or interference with its business from any court or from legislative or other governmental action, order or decree, whether foreign or domestic, or from any other occurrence not described in the Registration Statement and the Prospectus; and (iv) there must not have occurred any event that makes untrue or incorrect in any material respect any statement or information contained in the Registration Statement or the Prospectus or that is not reflected in the Registration Statement or the Prospectus but should be reflected therein in order to make the statements or information therein (in the case securities of the Prospectus, in light of the circumstances in which they were made) not misleading in any material respect; if, in the judgment of the Sales Manager, any such development referred to in clause (i), (ii), (iii), or (iv) of this paragraph (c) makes it impracticable or inadvisable to consummate the sale and delivery of the Common Shares pursuant to this Sales Agreement at the then current market price of the Common SharesCompany.
(d) Unless otherwise agreed to by the Sales Manager, the Sales Manager must have received as of each Settlement Date a certificate, dated such date, of the President or a Vice-President and the chief financial or accounting officer of each of the Fund and the Investment Adviser certifying (in their capacity as such officers and, with respect to clauses (ii), (iii) and (vi) below, on behalf of the Fund and the Investment Adviser, as the case may be) that (i) the signers The Sales Manager shall have carefully examined the Registration Statement, the Prospectus and this Sales Agreement, (ii) the representations of the Fund (with respect to the certificates from such Fund officers) and the representations of the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) in this Sales Agreement are accurate on and as of received at the date of the certificate, (iii) there has not been any material adverse change in the general affairs, prospects, management, business, financial condition or results of operations of the Fund (with respect to the certificates from such Fund officers) or the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser), which change would materially and adversely affect the ability of the Fund or the Investment Adviser, as the case may be, to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement (with respect to the certificates from such officers of the Investment Adviser), whether or not arising from transactions in the ordinary course of business, (iv) with respect to the Fund only, no order suspending the effectiveness of the Registration Statement, prohibiting the first sale of any of Common Stock hereunder (the Common Shares or otherwise having a material adverse effect on the Fund has been issued and no proceedings for any such purpose are pending before or, to the knowledge of such officers after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic, (v) no order having a material adverse effect on the ability of the Investment Adviser to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement, as the case may be, has been issued and no proceedings for any such purpose are pending before or, to the knowledge of the officers of the Investment Adviser after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic and (vi) each of the Fund (with respect to the certificates from such Fund officers“Commencement Date”) and the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) has performed all of its respective agreements that this Sales Agreement requires it to perform by such Settlement Date (to the extent not waived in writing by the Sales Manager).
(e) Unless otherwise agreed to by the Sales Manager, the Sales Manager must have received as of the at every other date of this Sales Agreement and each time referred to specified in Section 4(m3.1(n) the hereof, opinions dated as of the date thereof substantially in the form of Schedules A and B to this Sales Agreement (modified in the case of times referred to in Section 4(m) as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to that date) from the counsel identified in each such Schedule.
(f) Unless otherwise agreed to by the Sales Manager, the Sales Manager must have received as of the date of this Sales Agreement and each time referred to in Section 4(m) from its counsel an opinion dated as of the date thereof with respect to the Fund, the Common Shares, the Registration Statement and the Prospectus, this Sales Agreement and the form and sufficiency of all proceedings taken in connection with the sale and delivery of the Common Shares. Such opinion and proceedings shall fulfill the requirements of this Section 5(f) only if such opinion and proceedings are satisfactory in all respects to the Sales Manager. The Fund and the Investment Adviser must have furnished to such counsel such documents as counsel may reasonably request for the purpose of enabling them to render such opinion.
(g) Unless otherwise agreed to by the Sales Manager, the Sales Manager must have received on the date of this Sales Agreement a signed letter, dated such date, substantially in the form of Schedule C to this Sales Agreement from the independent registered public accounting firm designated in such Schedule. The Sales Manager also must have received as of each time referred to in Section 4(n) a signed letter from such accountantsCompany Counsel, dated as of the date thereofCommencement Date and dated as of such other date, confirming on the basis of in a review in accordance with the procedures set forth in their earlier letter that nothing has come form reasonably acceptable to their attention during the period from a date not more than five business days before the date of this Sales Agreement, specified in the letter, to a date not more than five business days before such time, that would require any change in their letter referred to in the foregoing sentence. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Sales Agreement will comply only if they are in form and scope reasonably satisfactory to counsel for the Sales Manager, provided that any such documents, forms of which are annexed hereto, .
(ii) The Sales Manager shall be deemed satisfactory have received a letter from Company Counsel authorizing the Sales Manager to such counsel if substantially in such formrely on the opinion on tax matters delivered by Company Counsel as Exhibit 8.1 to the Registration Statement.
Appears in 1 contract
Conditions of the Sales Manager’s Obligations. 4.1 The obligations of the Sales Manager to sell Common the Shares are as provided herein shall be subject to the accuracy on accuracy, as of the date of this Sales Agreementhereof, and as of each Settlement DateDate contemplated under this Agreement, of the representations and warranties of the Fund and the Investment Adviser in this Sales AgreementCompany herein, to the accuracy and completeness of all material statements made by the Fund and the Investment Adviser or any of their respective officers in any certificate delivered to the Sales Manager or its counsel pursuant to this Sales Agreement, to performance by the Fund and the Investment Adviser Company of their respective its obligations under this Sales Agreement hereunder and to each of the following additional conditions:
(a) The Registration Statement must have become effective. The Prospectus must have been filed in accordance with Rule 497(b) or (h) or a certificate must have been filed in accordance with Rule 497(j), as the case may be, under the Securities Act.
(b) No stop order suspending the effectiveness of the Registration Statement may be in effect shall have been issued and no proceedings proceeding for such that purpose may be pending before shall have been instituted or, to the knowledge of counsel to the Company or the Sales Manager, threatened by the Commission, and any requests request of the Commission for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) must be shall have been complied with or waived to the Sales Manager’s reasonable satisfaction of satisfaction.
(b) The Sales Manager shall not have advised the Company that the disclosures in the Registration Statement or the Prospectus are not reasonably acceptable to the Sales Manager.
(c) Since Except as contemplated in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there must not have been any material change in the Common Shares except as set forth in or contemplated by the Prospectus; (ii) there must shall not have been any material adverse change in the general affairsshares of beneficial interest of the Company, prospectsor any material adverse change, managementor any development that may reasonably be expected to cause a material adverse change, in the condition (financial or other), business, financial condition net worth or results of operations of the Fund Company, or the Investment Adviser whether or not arising from transactions any adverse change in the ordinary course of business as set forth in or contemplated by the Prospectus; (iii) the Fund must not have sustained rating assigned to any material loss or interference with its business from any court or from legislative or other governmental action, order or decree, whether foreign or domestic, or from any other occurrence not described in the Registration Statement and the Prospectus; and (iv) there must not have occurred any event that makes untrue or incorrect in any material respect any statement or information contained in the Registration Statement or the Prospectus or that is not reflected in the Registration Statement or the Prospectus but should be reflected therein in order to make the statements or information therein (in the case securities of the Prospectus, in light Company.
(1) The Sales Manager shall have received at the date of the circumstances first sale of Shares hereunder (the “Commencement Date”) and at every other date specified in which they were madeSection 3.1(n) not misleading in any material respect; ifabove, opinions of Company Counsel, dated as of the Commencement Date and dated as of such other date, in the judgment form of the Sales Manager, any such development referred to in clause (i), (ii), (iii), or (iv) of this paragraph (c) makes it impracticable or inadvisable to consummate the sale and delivery of the Common Shares pursuant to this Sales Agreement at the then current market price of the Common SharesSchedule A hereto.
(d2) Unless otherwise agreed to by The Sales Manager shall have received a letter from Company Counsel authorizing the Sales ManagerManager to rely on the opinion on tax matters delivered by Company Counsel as Exhibit 8.1 to the Registration Statement.
(e) At the Commencement Date and at such other dates specified in Section
3.1 (o) above, the Sales Manager must shall have received as a “comfort letter” from Pricewaterhouse Coopers LLP, independent public accountants for the Company, or other independent accountants then retained by the Company, dated the date of each Settlement Date delivery thereof, in form and substance satisfactory to the Sales Manager.
(f) The Sales Manager shall have received from the Company a certificate, dated such dateor certificates, signed by the Chief Financial Officer and President or Chief Executive Officer or any Vice President of the President or a Vice-President Company, dated as of the Commencement Date and (unless the chief financial or accounting officer Company is not then selling Shares through the Sales Manager and has not requested the Sales Manager to sell Shares) dated as of the first business day of each calendar month thereafter (each a “Certificate Date”), to the effect that, to the best of their knowledge based upon reasonable investigation:
(i) The representations and warranties of the Fund Company in this Agreement are true and the Investment Adviser certifying (in their capacity correct, as such officers and, with respect to clauses (ii), (iii) if made at and (vi) below, on behalf as of the Fund and Commencement Date or the Investment Adviser, Certificate Date (as the case may be) that ), and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Commencement Date and each such Certificate Date (i) as the signers have carefully examined the Registration Statement, the Prospectus and this Sales Agreement, case may be);
(ii) No stop order suspending the representations effectiveness of the Fund (with respect Registration Statement has been issued, and no proceeding for that purpose has been instituted or, to the certificates from knowledge of such Fund officersofficer after due inquiry, is threatened, by the Commission;
(iii) and the representations of the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) in this Sales Agreement are accurate on and as of Since the date of this Agreement there has occurred no event required to be set forth in an amendment or supplement to the certificateRegistration Statement or Prospectus that has not been so set forth and there has been no document required to be filed under the Exchange Act and the rules and regulations of the Commission thereunder that upon such filing would be deemed to be incorporated by reference in the Prospectus that has not been so filed; and
(iv) Since the date of this Agreement, (iii) there has not been any material adverse change in the general affairs, prospects, managementassets or properties, business, financial condition or results of operations operations, or condition (financial or otherwise) of the Fund (with respect Company, which has not been described in an amendment or supplement to the certificates from such Fund officers) Registration Statement or the Investment Adviser Prospectus (with respect to the certificates from such officers of the Investment Adviser), which change would materially and adversely affect the ability of the Fund directly or the Investment Adviser, as the case may be, to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement (with respect to the certificates from such officers of the Investment Adviser), whether or not arising from transactions in the ordinary course of business, (iv) with respect to the Fund only, no order suspending the effectiveness of the Registration Statement, prohibiting the sale of any of the Common Shares or otherwise having a material adverse effect on the Fund has been issued and no proceedings for any such purpose are pending before or, to the knowledge of such officers after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic, (v) no order having a material adverse effect on the ability of the Investment Adviser to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement, as the case may be, has been issued and no proceedings for any such purpose are pending before or, to the knowledge of the officers of the Investment Adviser after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic and (vi) each of the Fund (with respect to the certificates from such Fund officers) and the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) has performed all of its respective agreements that this Sales Agreement requires it to perform by such Settlement Date (to the extent not waived in writing by the Sales Managerincorporation).
(eg) Unless otherwise agreed At the Commencement Date and on each Settlement Date, the Company shall have furnished to by the Sales Manager, the Sales Manager must have received such appropriate further information, certificates and documents as of the date of this Sales Agreement and each time referred to in Section 4(m) the opinions dated as of the date thereof substantially in the form of Schedules A and B to this Sales Agreement (modified in the case of times referred to in Section 4(m) as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to that date) from the counsel identified in each such Schedule.
(f) Unless otherwise agreed to by the Sales Manager, the Sales Manager must have received as of the date of this Sales Agreement may reasonably request. All such opinions, certificates, letters and each time referred to other documents will be in Section 4(m) from its counsel an opinion dated as of the date thereof with respect to the Fund, the Common Shares, the Registration Statement and the Prospectus, this Sales Agreement and the form and sufficiency of all proceedings taken in connection compliance with the sale and delivery of the Common Shares. Such opinion and proceedings shall fulfill the requirements of this Section 5(f) provisions hereof only if such opinion and proceedings they are satisfactory in all respects form and substance to the Sales Manager. The Fund and the Investment Adviser must have furnished to such counsel such documents as counsel may reasonably request for the purpose of enabling them to render such opinion.
(g) Unless otherwise agreed to by the Sales Manager, Company will furnish the Sales Manager must have received on with such conformed copies of such opinions, certificates, letters and other documents, as the date of this Sales Agreement a signed letter, dated such date, substantially in the form of Schedule C to this Sales Agreement from the independent registered public accounting firm designated in such Schedule. The Sales Manager also must have received as of each time referred to in Section 4(n) a signed letter from such accountants, dated as of the date thereof, confirming on the basis of a review in accordance with the procedures set forth in their earlier letter that nothing has come to their attention during the period from a date not more than five business days before the date of this Sales Agreement, specified in the letter, to a date not more than five business days before such time, that would require any change in their letter referred to in the foregoing sentence. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Sales Agreement will comply only if they are in form and scope shall reasonably satisfactory to counsel for the Sales Manager, provided that any such documents, forms of which are annexed hereto, shall be deemed satisfactory to such counsel if substantially in such formrequest.
Appears in 1 contract
Conditions of the Sales Manager’s Obligations. 4.1. The obligations of the Sales Manager to sell Common Shares are the Stock as provided herein shall be subject to the accuracy on accuracy, as of the date of this Sales Agreementhereof, and as of each Settlement DateDate contemplated under this Agreement, of the representations and warranties of the Fund and the Investment Adviser in this Sales AgreementCompany herein, to the accuracy and completeness of all material statements made by the Fund and the Investment Adviser or any of their respective officers in any certificate delivered to the Sales Manager or its counsel pursuant to this Sales Agreement, to performance by the Fund and the Investment Adviser Company of their respective its obligations under this Sales Agreement hereunder and to each of the following additional conditions:
(a) The Registration Statement must have become effective. The Prospectus must have been filed in accordance with Rule 497(b) or (h) or a certificate must have been filed in accordance with Rule 497(j), as the case may be, under the Securities Act.
(b) No stop order suspending the effectiveness of the Registration Statement may be in effect shall have been issued and no proceedings proceeding for such that purpose may be pending before shall have been instituted or, to the knowledge of counsel to the Company or the Sales Manager, threatened by the Commission, and any requests request of the Commission for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) must be shall have been complied with or waived to the Sales Manager’s reasonable satisfaction of satisfaction.
(b) The Sales Manager shall not have advised the Company that the disclosures in the Registration Statement or the Prospectus are not reasonably acceptable to the Sales Manager.
(c) Since Except as contemplated in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there must not have been any material change in the Common Shares except as set forth in or contemplated by the Prospectus; (ii) there must shall not have been any material adverse change in the general affairscapital stock of the Company, prospectsor any material adverse change, managementor any development that may reasonably be expected to cause a material adverse change, in the condition (financial or other), business, financial condition net worth or results of operations of the Fund Company, or the Investment Adviser whether or not arising from transactions any adverse change in the ordinary course of business as set forth in or contemplated by the Prospectus; (iii) the Fund must not have sustained rating assigned to any material loss or interference with its business from any court or from legislative or other governmental action, order or decree, whether foreign or domestic, or from any other occurrence not described in the Registration Statement and the Prospectus; and (iv) there must not have occurred any event that makes untrue or incorrect in any material respect any statement or information contained in the Registration Statement or the Prospectus or that is not reflected in the Registration Statement or the Prospectus but should be reflected therein in order to make the statements or information therein (in the case securities of the ProspectusCompany.
(1) The Sales Manager shall have received at the first Settlement Date hereunder (the “Commencement Date”) and at every other date specified in Section 3.1(n) above, in light opinions of Company Counsel, dated as of the circumstances in which they were made) not misleading in any material respect; ifCommencement Date and dated as of such other date, in the judgment form of the Sales Manager, any such development referred to in clause (i), (ii), (iii), or (iv) of this paragraph (c) makes it impracticable or inadvisable to consummate the sale and delivery of the Common Shares pursuant to this Sales Agreement at the then current market price of the Common SharesSchedule A hereto.
(d2) Unless otherwise agreed to by The Sales Manager shall have received a letter from Company Counsel authorizing the Sales ManagerManager to rely on the opinion on tax matters delivered by Company Counsel as Exhibit 8.1 to the Registration Statement.
(e) At the Commencement Date and at such other dates specified in Section 3.1(o) above, the Sales Manager must shall have received as a “comfort letter” from PricewaterhouseCoopers, independent public accountants for the Company, or other independent accountants then retained by the Company, dated the date of each Settlement Date delivery thereof, in form and substance satisfactory to the Sales Manager.
(f) The Sales Manager shall have received from the Company a certificate, dated such dateor certificates, signed by the Chief Financial Officer and President or Chief Executive Officer or any Vice President of the President or a Vice-President Company, dated as of the Commencement Date and (unless the chief financial or accounting officer Company is not then selling Stock through the Sales Manager and has not requested the Sales Manager to sell Stock) dated as of the first business day of each fiscal quarter thereafter (each, a “Certificate Date”), to the effect that, to the best of their knowledge based upon reasonable investigation:
(i) The representations and warranties of the Fund Company in this Agreement are true and the Investment Adviser certifying (in their capacity correct, as such officers and, with respect to clauses (ii), (iii) if made at and (vi) below, on behalf as of the Fund and Commencement Date or the Investment Adviser, Certificate Date (as the case may be) that ), and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Commencement Date and each such Certificate Date (i) as the signers have carefully examined the Registration Statement, the Prospectus and this Sales Agreement, case may be);
(ii) No stop order suspending the representations effectiveness of the Fund (with respect Registration Statement has been issued, and no proceeding for that purpose has been instituted or, to the certificates from knowledge of such Fund officersofficer after due inquiry, is threatened, by the Commission;
(iii) and the representations of the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) in this Sales Agreement are accurate on and as of Since the date of this Agreement there has occurred no event required to be set forth in an amendment or supplement to the certificateRegistration Statement or Prospectus that has not been so set forth and there has been no document required to be filed under the Exchange Act and the rules and regulations of the Commission thereunder that upon such filing would be deemed to be incorporated by reference in the Prospectus that has not been so filed; and
(iv) Since the date of this Agreement, (iii) there has not been any material adverse change in the general affairs, prospects, managementassets or properties, business, financial condition or results of operations operations, or condition (financial or otherwise) of the Fund (with respect Company, which has not been described in an amendment or supplement to the certificates from such Fund officers) Registration Statement or the Investment Adviser Prospectus (with respect to the certificates from such officers of the Investment Adviser), which change would materially and adversely affect the ability of the Fund directly or the Investment Adviser, as the case may be, to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement (with respect to the certificates from such officers of the Investment Adviser), whether or not arising from transactions in the ordinary course of business, (iv) with respect to the Fund only, no order suspending the effectiveness of the Registration Statement, prohibiting the sale of any of the Common Shares or otherwise having a material adverse effect on the Fund has been issued and no proceedings for any such purpose are pending before or, to the knowledge of such officers after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic, (v) no order having a material adverse effect on the ability of the Investment Adviser to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement, as the case may be, has been issued and no proceedings for any such purpose are pending before or, to the knowledge of the officers of the Investment Adviser after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic and (vi) each of the Fund (with respect to the certificates from such Fund officers) and the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) has performed all of its respective agreements that this Sales Agreement requires it to perform by such Settlement Date (to the extent not waived in writing by the Sales Managerincorporation).
(eg) Unless otherwise agreed At the Commencement Date and on each Settlement Date, the Company shall have furnished to by the Sales Manager, the Sales Manager must have received such appropriate further information, certificates and documents as of the date of this Sales Agreement and each time referred to in Section 4(m) the opinions dated as of the date thereof substantially in the form of Schedules A and B to this Sales Agreement (modified in the case of times referred to in Section 4(m) as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to that date) from the counsel identified in each such Schedule.
(f) Unless otherwise agreed to by the Sales Manager, the Sales Manager must have received as of the date of this Sales Agreement may reasonably request. All such opinions, certificates, letters and each time referred to other documents will be in Section 4(m) from its counsel an opinion dated as of the date thereof with respect to the Fund, the Common Shares, the Registration Statement and the Prospectus, this Sales Agreement and the form and sufficiency of all proceedings taken in connection compliance with the sale and delivery of the Common Shares. Such opinion and proceedings shall fulfill the requirements of this Section 5(f) provisions hereof only if such opinion and proceedings they are satisfactory in all respects form and substance to the Sales Manager. The Fund and the Investment Adviser must have furnished to such counsel such documents as counsel may reasonably request for the purpose of enabling them to render such opinion.
(g) Unless otherwise agreed to by the Sales Manager, Company will furnish the Sales Manager must have received on with such conformed copies of such opinions, certificates, letters and other documents, as the date of this Sales Agreement a signed letter, dated such date, substantially in the form of Schedule C to this Sales Agreement from the independent registered public accounting firm designated in such Schedule. The Sales Manager also must have received as of each time referred to in Section 4(n) a signed letter from such accountants, dated as of the date thereof, confirming on the basis of a review in accordance with the procedures set forth in their earlier letter that nothing has come to their attention during the period from a date not more than five business days before the date of this Sales Agreement, specified in the letter, to a date not more than five business days before such time, that would require any change in their letter referred to in the foregoing sentence. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Sales Agreement will comply only if they are in form and scope shall reasonably satisfactory to counsel for the Sales Manager, provided that any such documents, forms of which are annexed hereto, shall be deemed satisfactory to such counsel if substantially in such formrequest.
Appears in 1 contract
Conditions of the Sales Manager’s Obligations. 4.1 The obligations of the Sales Manager to sell Common Shares are the Stock as provided in this Agreement shall be subject to the accuracy on accuracy, as of the date of this Sales Agreementhereof, and as of each Settlement DateDate contemplated under this Agreement, of the representations and warranties of the Fund and the Investment Adviser Company in this Sales Agreement, to the accuracy and completeness of all material statements made by the Fund and the Investment Adviser or any of their respective officers in any certificate delivered to the Sales Manager or its counsel pursuant to this Sales Agreement, to performance by the Fund and the Investment Adviser Company of their respective its obligations under in this Sales Agreement and to each of the following additional conditions:
(a) The Registration Statement must have become has been declared effective. The Prospectus must have been filed in accordance with Rule 497(b) or (h) or a certificate must have been filed in accordance with Rule 497(j), as the case may be, under the Securities Act.
(b) No stop order suspending the effectiveness of the Registration Statement may be in effect shall have been issued and no proceedings proceeding for such that purpose may be pending before shall have been instituted or, to the knowledge of counsel to the Company or the Sales Manager, threatened by the Commission, and any requests request of the Commission for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) must be shall have been complied with or waived to the Sales Manager’s reasonable satisfaction of satisfaction. The supplement to the Prospectus contemplated by Section 3.1(a) above has been filed.
(b) The Sales Manager shall not have advised the Company that the disclosures in the Registration Statement or the Prospectus are not reasonably acceptable to the Sales Manager.
(c) Since Except as contemplated in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there must not have been any material change in the Common Shares except as set forth in or contemplated by the Prospectus; (ii) there must shall not have been any material adverse change in the general affairscapital stock of the Company, or any material adverse change, or any development that may reasonably be expected to cause a material adverse change, in the condition (financial or other), business, prospects, management, business, financial condition net worth or results of operations of the Fund Company, or the Investment Adviser whether or not arising from transactions any adverse change in the ordinary course of business as set forth in or contemplated by the Prospectus; (iii) the Fund must not have sustained rating assigned to any material loss or interference with its business from any court or from legislative or other governmental action, order or decree, whether foreign or domestic, or from any other occurrence not described in the Registration Statement and the Prospectus; and (iv) there must not have occurred any event that makes untrue or incorrect in any material respect any statement or information contained in the Registration Statement or the Prospectus or that is not reflected in the Registration Statement or the Prospectus but should be reflected therein in order to make the statements or information therein (in the case debt securities of the ProspectusCompany, in light of the circumstances in which they were made) not misleading in any material respect; if, in the judgment of the Sales Manager, any such development referred to in clause (i), (ii), (iii), or (iv) of this paragraph (c) makes it impracticable or inadvisable to consummate the sale and delivery of the Common Shares pursuant to this Sales Agreement at the then current market price of the Common Sharesif any.
(d) Unless otherwise agreed The Sales Manager shall have received at the date of the first sale of shares of the Stock hereunder (the “Commencement Date”) and at every other date specified in Section 3.1(n) above, opinions of Company Counsel and special counsel, dated as of the Commencement Date and dated as of such other date, in form and substance reasonably acceptable to by the Sales Manager.
(e) At the Commencement Date and at such other dates specified in Section 3.1(o) above, the Sales Manager must shall have received as a “comfort letter” from Xxxxxx LLP, independent public accountants for the Company, or other independent accountants then retained by the Company, dated the date of each Settlement Date delivery thereof, in form and substance satisfactory to the Sales Manager.
(f) The Sales Manager shall have received from the Company a certificate, dated such dateor certificates, signed by (i) the Chief Financial Officer and (ii) the President and Chief Executive Officer or any Vice President of the President or a Vice-President Company, dated as of the Commencement Date and (unless the chief financial or accounting officer Company is not then selling Stock through the Sales Manager and has not requested the Sales Manager to sell Stock) dated as of the first business day of each calendar month thereafter (each, a “Certificate Date”), to the effect that, to the best of their knowledge based upon reasonable investigation:
(i) The representations and warranties of the Fund Company in this Agreement are true and the Investment Adviser certifying (in their capacity correct, as such officers and, with respect to clauses (ii), (iii) if made at and (vi) below, on behalf as of the Fund and Commencement Date or the Investment Adviser, Certificate Date (as the case may be) that ), and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Commencement Date and each such Certificate Date (i) as the signers have carefully examined the Registration Statement, the Prospectus and this Sales Agreement, case may be);
(ii) No stop order suspending the representations effectiveness of the Fund (with respect Registration Statement has been issued, and no proceeding for that purpose has been instituted or, to the certificates from knowledge of such Fund officersofficer after due inquiry, is threatened, by the Commission;
(iii) and the representations of the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) in this Sales Agreement are accurate on and as of Since the date of this Agreement there has occurred no event required to be set forth in an amendment or supplement to the certificateRegistration Statement or Prospectus that has not been so set forth and there has been no document required to be filed under the Exchange Act and the rules and regulations of the Commission thereunder that upon such filing would be deemed to be incorporated by reference in the Prospectus that has not been so filed; and
(iv) Since the date of this Agreement, (iii) there has not been any material adverse change in the general affairsassets or properties, business, prospects, management, business, financial condition or results of operations operations, or condition (financial or otherwise) of the Fund (with respect Company, which has not been described in an amendment or supplement to the certificates from such Fund officers) Registration Statement or the Investment Adviser Prospectus (with respect to the certificates from such officers of the Investment Adviser), which change would materially and adversely affect the ability of the Fund directly or the Investment Adviser, as the case may be, to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement (with respect to the certificates from such officers of the Investment Adviser), whether or not arising from transactions in the ordinary course of business, (iv) with respect to the Fund only, no order suspending the effectiveness of the Registration Statement, prohibiting the sale of any of the Common Shares or otherwise having a material adverse effect on the Fund has been issued and no proceedings for any such purpose are pending before or, to the knowledge of such officers after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic, (v) no order having a material adverse effect on the ability of the Investment Adviser to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement, as the case may be, has been issued and no proceedings for any such purpose are pending before or, to the knowledge of the officers of the Investment Adviser after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic and (vi) each of the Fund (with respect to the certificates from such Fund officers) and the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) has performed all of its respective agreements that this Sales Agreement requires it to perform by such Settlement Date (to the extent not waived in writing by the Sales Managerincorporation).
(eg) Unless otherwise agreed At the Commencement Date and on each Settlement Date, the Company shall have furnished to by the Sales Manager, the Sales Manager must have received such appropriate further information, officers’ certificates and similar documents as of the date of this Sales Agreement and each time referred to in Section 4(m) the opinions dated as of the date thereof substantially in the form of Schedules A and B to this Sales Agreement (modified in the case of times referred to in Section 4(m) as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to that date) from the counsel identified in each such ScheduleManager may reasonably request.
(fh) Unless otherwise agreed to by At the Sales ManagerCommencement Date and on each Settlement Date, the Sales Manager must Company shall have received as of listed for quotation the date of this Sales Agreement Stock on the Trading Market. All such opinions, certificates, letters and each time referred to other documents will be in Section 4(m) from its counsel an opinion dated as of the date thereof with respect to the Fund, the Common Shares, the Registration Statement and the Prospectus, this Sales Agreement and the form and sufficiency of all proceedings taken in connection compliance with the sale and delivery of the Common Shares. Such opinion and proceedings shall fulfill the requirements of this Section 5(f) provisions hereof only if such opinion and proceedings they are satisfactory in all respects form and substance to the Sales Manager. The Fund and the Investment Adviser must have furnished to such counsel such documents as counsel may reasonably request for the purpose of enabling them to render such opinion.
(g) Unless otherwise agreed to by the Sales Manager, Company will furnish the Sales Manager must have received on with such conformed copies of such opinions, certificates, letters and other documents, as the date of this Sales Agreement a signed letter, dated such date, substantially in the form of Schedule C to this Sales Agreement from the independent registered public accounting firm designated in such Schedule. The Sales Manager also must have received as of each time referred to in Section 4(n) a signed letter from such accountants, dated as of the date thereof, confirming on the basis of a review in accordance with the procedures set forth in their earlier letter that nothing has come to their attention during the period from a date not more than five business days before the date of this Sales Agreement, specified in the letter, to a date not more than five business days before such time, that would require any change in their letter referred to in the foregoing sentence. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Sales Agreement will comply only if they are in form and scope shall reasonably satisfactory to counsel for the Sales Manager, provided that any such documents, forms of which are annexed hereto, shall be deemed satisfactory to such counsel if substantially in such formrequest.
Appears in 1 contract
Conditions of the Sales Manager’s Obligations. 4.1 The obligations of the Sales Manager to sell Common Shares are the Stock as provided in this Agreement shall be subject to the accuracy on accuracy, as of the date of this Sales Agreementhereof, and as of each Settlement DateDate contemplated under this Agreement, of the representations and warranties of the Fund and the Investment Adviser Company in this Sales Agreement, to the accuracy and completeness of all material statements made by the Fund and the Investment Adviser or any of their respective officers in any certificate delivered to the Sales Manager or its counsel pursuant to this Sales Agreement, to performance by the Fund and the Investment Adviser Company of their respective its obligations under in this Sales Agreement and to each of the following additional conditions:
(a) The Registration Statement must have become shall be effective. The Prospectus must have been filed in accordance with Rule 497(b) or (h) or a certificate must have been filed in accordance with Rule 497(j), as the case may be, under the Securities Act.
(b) No no stop order suspending the effectiveness of the Registration Statement may be in effect shall have been issued and no proceedings proceeding for such that purpose may be pending before shall have been instituted or, to the knowledge of counsel to the Company or the Sales Manager, threatened by the Commission, and any requests request of the Commission for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) must be shall have been complied with or waived to the Sales Manager’s reasonable satisfaction of satisfaction. The supplement to the Prospectus contemplated by Section 3.1(a) above shall have been filed.
(b) The Sales Manager shall not have advised the Company that the disclosures in the Registration Statement or the Prospectus are not reasonably acceptable to the Sales Manager.
(c) Since Except as contemplated in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there must not have been any material change in the Common Shares except as set forth in or contemplated by the Prospectus; (ii) there must shall not have been any material adverse change in the general affairscapital stock of the Company, or any material adverse change, or any development that may reasonably be expected to cause a material adverse change, in the condition (financial or other), business, prospects, management, business, financial condition net worth or results of operations of the Fund Company, or the Investment Adviser whether or not arising from transactions any adverse change in the ordinary course of business as set forth in or contemplated by the Prospectus; (iii) the Fund must not have sustained rating assigned to any material loss or interference with its business from any court or from legislative or other governmental action, order or decree, whether foreign or domestic, or from any other occurrence not described in the Registration Statement and the Prospectus; and (iv) there must not have occurred any event that makes untrue or incorrect in any material respect any statement or information contained in the Registration Statement or the Prospectus or that is not reflected in the Registration Statement or the Prospectus but should be reflected therein in order to make the statements or information therein (in the case debt securities of the ProspectusCompany, in light of the circumstances in which they were made) not misleading in any material respect; if, in the judgment of the Sales Manager, any such development referred to in clause (i), (ii), (iii), or (iv) of this paragraph (c) makes it impracticable or inadvisable to consummate the sale and delivery of the Common Shares pursuant to this Sales Agreement at the then current market price of the Common Sharesif any.
(d) Unless otherwise agreed The Sales Manager shall have received at the date of the first sale of Stock hereunder (the “Commencement Date”) and at every other date specified in Section 3.1(n) above, opinions of Company Counsel and special counsel, dated as of the Commencement Date and dated as of such other date, in form and substance reasonably acceptable to by the Sales Manager.
(e) At the Commencement Date and at such other dates specified in Section 3.1(o) above, the Sales Manager must shall have received as a “comfort letter” from Gxxxx Xxxxxxxx, LLP, independent public accountants for the Company, or other independent accountants then retained by the Company, dated the date of each Settlement Date delivery thereof, in form and substance satisfactory to the Sales Manager.
(f) The Sales Manager shall have received from the Company a certificate, dated such dateor certificates, signed by (i) the Chief Financial Officer and (ii) the President and Chief Executive Officer or any Vice President of the President or a Vice-President Company, dated as of the Commencement Date and (unless the chief financial or accounting officer Company is not then selling Stock through the Sales Manager and has not requested the Sales Manager to sell Stock) dated as of the earlier of (x) the first business day of each calendar month thereafter if there is an active Placement Notice on such date and (y) the first business day of each calendar month thereafter on which a Placement Notice is delivered (each, a “Certificate Date”), to the effect that, to the best of their knowledge based upon reasonable investigation:
(i) The representations and warranties of the Fund Company in this Agreement are true and the Investment Adviser certifying (in their capacity correct, as such officers and, with respect to clauses (ii), (iii) if made at and (vi) below, on behalf as of the Fund and Commencement Date or the Investment Adviser, Certificate Date (as the case may be) that ), and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Commencement Date and each such Certificate Date (i) as the signers have carefully examined the Registration Statement, the Prospectus and this Sales Agreement, case may be);
(ii) No stop order suspending the representations effectiveness of the Fund (with respect Registration Statement has been issued, and no proceeding for that purpose has been instituted or, to the certificates from knowledge of such Fund officersofficer after due inquiry, is threatened, by the Commission;
(iii) and the representations of the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) in this Sales Agreement are accurate on and as of Since the date of this Agreement there has occurred no event required to be set forth in an amendment or supplement to the certificateRegistration Statement or Prospectus that has not been so set forth and there has been no document required to be filed under the Exchange Act and the rules and regulations thereunder that upon such filing would be deemed to be incorporated by reference in the Prospectus that has not been so filed; and
(iv) Since the date of this Agreement, (iii) there has not been any material adverse change in the general affairsassets or properties, business, prospects, management, business, financial condition or results of operations operations, or condition (financial or otherwise) of the Fund (with respect Company, which has not been described in an amendment or supplement to the certificates from such Fund officers) Registration Statement or the Investment Adviser Prospectus (with respect to the certificates from such officers of the Investment Adviser), which change would materially and adversely affect the ability of the Fund directly or the Investment Adviser, as the case may be, to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement (with respect to the certificates from such officers of the Investment Adviser), whether or not arising from transactions in the ordinary course of business, (iv) with respect to the Fund only, no order suspending the effectiveness of the Registration Statement, prohibiting the sale of any of the Common Shares or otherwise having a material adverse effect on the Fund has been issued and no proceedings for any such purpose are pending before or, to the knowledge of such officers after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic, (v) no order having a material adverse effect on the ability of the Investment Adviser to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement, as the case may be, has been issued and no proceedings for any such purpose are pending before or, to the knowledge of the officers of the Investment Adviser after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic and (vi) each of the Fund (with respect to the certificates from such Fund officers) and the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) has performed all of its respective agreements that this Sales Agreement requires it to perform by such Settlement Date (to the extent not waived in writing by the Sales Managerincorporation).
(eg) Unless otherwise agreed At the Commencement Date and on each Settlement Date, the Company shall have furnished to by the Sales Manager, the Sales Manager must have received such appropriate further information, officers’ certificates and similar documents as of the date of this Sales Agreement and each time referred to in Section 4(m) the opinions dated as of the date thereof substantially in the form of Schedules A and B to this Sales Agreement (modified in the case of times referred to in Section 4(m) as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to that date) from the counsel identified in each such ScheduleManager may reasonably request.
(fh) Unless otherwise agreed to by At the Sales ManagerCommencement Date and on each Settlement Date, the Sales Manager must Company shall have received as of listed for quotation the date of this Sales Agreement Stock on the Trading Market. All such opinions, certificates, letters and each time referred to other documents will be in Section 4(m) from its counsel an opinion dated as of the date thereof with respect to the Fund, the Common Shares, the Registration Statement and the Prospectus, this Sales Agreement and the form and sufficiency of all proceedings taken in connection compliance with the sale and delivery of the Common Shares. Such opinion and proceedings shall fulfill the requirements of this Section 5(f) provisions hereof only if such opinion and proceedings they are satisfactory in all respects form and substance to the Sales Manager. The Fund and the Investment Adviser must have furnished to such counsel such documents as counsel may reasonably request for the purpose of enabling them to render such opinion.
(g) Unless otherwise agreed to by the Sales Manager, Company will furnish the Sales Manager must have received on with such conformed copies of such opinions, certificates, letters and other documents, as the date of this Sales Agreement a signed letter, dated such date, substantially in the form of Schedule C to this Sales Agreement from the independent registered public accounting firm designated in such Schedule. The Sales Manager also must have received as of each time referred to in Section 4(n) a signed letter from such accountants, dated as of the date thereof, confirming on the basis of a review in accordance with the procedures set forth in their earlier letter that nothing has come to their attention during the period from a date not more than five business days before the date of this Sales Agreement, specified in the letter, to a date not more than five business days before such time, that would require any change in their letter referred to in the foregoing sentence. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Sales Agreement will comply only if they are in form and scope shall reasonably satisfactory to counsel for the Sales Manager, provided that any such documents, forms of which are annexed hereto, shall be deemed satisfactory to such counsel if substantially in such formrequest.
Appears in 1 contract
Conditions of the Sales Manager’s Obligations. 4.1 The obligations of the Sales Manager to sell Common Shares are the Stock as provided in this Agreement shall be subject to the accuracy on accuracy, as of the date of this Sales Agreementhereof, and as of each Settlement DateDate contemplated under this Agreement, of the representations and warranties of the Fund and the Investment Adviser Company in this Sales Agreement, to the accuracy and completeness of all material statements made by the Fund and the Investment Adviser or any of their respective officers in any certificate delivered to the Sales Manager or its counsel pursuant to this Sales Agreement, to performance by the Fund and the Investment Adviser Company of their respective its obligations under in this Sales Agreement and to each of the following additional conditions:
(a) The Registration Statement must have become has been declared effective. The Prospectus must have been filed in accordance with Rule 497(b) or (h) or a certificate must have been filed in accordance with Rule 497(j), as the case may be, under the Securities Act.
(b) No stop order suspending the effectiveness of the Registration Statement may be in effect shall have been issued and no proceedings proceeding for such that purpose may be pending before shall have been instituted or, to the knowledge of counsel to the Company or the Sales Manager, threatened by the Commission, and any requests request of the Commission for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) must be shall have been complied with or waived to the Sales Manager’s reasonable satisfaction of satisfaction. The supplement to the Prospectus contemplated by Section 3.1(a) above has been filed.
(b) The Sales Manager shall not have advised the Company that the disclosures in the Registration Statement or the Prospectus are not reasonably acceptable to the Sales Manager.
(c) Since Except as contemplated in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there must not have been any material change in the Common Shares except as set forth in or contemplated by the Prospectus; (ii) there must shall not have been any material adverse change in the general affairscapital stock of the Company, or any material adverse change, or any development that may reasonably be expected to cause a material adverse change, in the condition (financial or other), business, prospects, management, business, financial condition net worth or results of operations of the Fund Company, or the Investment Adviser whether or not arising from transactions any adverse change in the ordinary course of business as set forth in or contemplated by the Prospectus; (iii) the Fund must not have sustained rating assigned to any material loss or interference with its business from any court or from legislative or other governmental action, order or decree, whether foreign or domestic, or from any other occurrence not described in the Registration Statement and the Prospectus; and (iv) there must not have occurred any event that makes untrue or incorrect in any material respect any statement or information contained in the Registration Statement or the Prospectus or that is not reflected in the Registration Statement or the Prospectus but should be reflected therein in order to make the statements or information therein (in the case debt securities of the ProspectusCompany, in light of the circumstances in which they were made) not misleading in any material respect; if, in the judgment of the Sales Manager, any such development referred to in clause (i), (ii), (iii), or (iv) of this paragraph (c) makes it impracticable or inadvisable to consummate the sale and delivery of the Common Shares pursuant to this Sales Agreement at the then current market price of the Common Sharesif any.
(d) Unless otherwise agreed The Sales Manager shall have received at the date of the first sale of Stock hereunder (the “Commencement Date”) and at every other date specified in Section 3.1(n) above, opinions of Company Counsel and special counsel, dated as of the Commencement Date and dated as of such other date, in form and substance reasonably acceptable to by the Sales Manager.
(e) At the Commencement Date and at such other dates specified in Section 3.1(o) above, the Sales Manager must shall have received as a “comfort letter” from Amper, Politziner & Xxxxxx, LLP, independent public accountants for the Company, or other independent accountants then retained by the Company, dated the date of each Settlement Date delivery thereof, in form and substance satisfactory to the Sales Manager.
(f) The Sales Manager shall have received from the Company a certificate, dated such dateor certificates, signed by (i) the Chief Financial Officer and (ii) the President and Chief Executive Officer or any Vice President of the President or a Vice-President Company, dated as of the Commencement Date and (unless the chief financial or accounting officer Company is not then selling Stock through the Sales Manager and has not requested the Sales Manager to sell Stock) dated as of the first and fifteenth business day of each calendar month thereafter (each, a “Certificate Date”), to the effect that, to the best of their knowledge based upon reasonable investigation:
(i) The representations and warranties of the Fund Company in this Agreement are true and the Investment Adviser certifying (in their capacity correct, as such officers and, with respect to clauses (ii), (iii) if made at and (vi) below, on behalf as of the Fund and Commencement Date or the Investment Adviser, Certificate Date (as the case may be) that ), and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Commencement Date and each such Certificate Date (i) as the signers have carefully examined the Registration Statement, the Prospectus and this Sales Agreement, case may be);
(ii) No stop order suspending the representations effectiveness of the Fund (with respect Registration Statement has been issued, and no proceeding for that purpose has been instituted or, to the certificates from knowledge of such Fund officersofficer after due inquiry, is threatened, by the Commission;
(iii) and the representations of the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) in this Sales Agreement are accurate on and as of Since the date of this Agreement there has occurred no event required to be set forth in an amendment or supplement to the certificateRegistration Statement or Prospectus that has not been so set forth and there has been no document required to be filed under the Exchange Act and the rules and regulations of the Commission thereunder that upon such filing would be deemed to be incorporated by reference in the Prospectus that has not been so filed; and
(iv) Since the date of this Agreement, (iii) there has not been any material adverse change in the general affairsassets or properties, business, prospects, management, business, financial condition or results of operations operations, or condition (financial or otherwise) of the Fund (with respect Company, which has not been described in an amendment or supplement to the certificates from such Fund officers) Registration Statement or the Investment Adviser Prospectus (with respect to the certificates from such officers of the Investment Adviser), which change would materially and adversely affect the ability of the Fund directly or the Investment Adviser, as the case may be, to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement (with respect to the certificates from such officers of the Investment Adviser), whether or not arising from transactions in the ordinary course of business, (iv) with respect to the Fund only, no order suspending the effectiveness of the Registration Statement, prohibiting the sale of any of the Common Shares or otherwise having a material adverse effect on the Fund has been issued and no proceedings for any such purpose are pending before or, to the knowledge of such officers after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic, (v) no order having a material adverse effect on the ability of the Investment Adviser to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement, as the case may be, has been issued and no proceedings for any such purpose are pending before or, to the knowledge of the officers of the Investment Adviser after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic and (vi) each of the Fund (with respect to the certificates from such Fund officers) and the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) has performed all of its respective agreements that this Sales Agreement requires it to perform by such Settlement Date (to the extent not waived in writing by the Sales Managerincorporation).
(eg) Unless otherwise agreed At the Commencement Date and on each Settlement Date, the Company shall have furnished to by the Sales Manager, the Sales Manager must have received such appropriate further information, officers’ certificates and similar documents as of the date of this Sales Agreement and each time referred to in Section 4(m) the opinions dated as of the date thereof substantially in the form of Schedules A and B to this Sales Agreement (modified in the case of times referred to in Section 4(m) as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to that date) from the counsel identified in each such ScheduleManager may reasonably request.
(fh) Unless otherwise agreed to by At the Sales ManagerCommencement Date and on each Settlement Date, the Sales Manager must Company shall have received as of listed for quotation the date of this Sales Agreement Stock on the Trading Market. All such opinions, certificates, letters and each time referred to other documents will be in Section 4(m) from its counsel an opinion dated as of the date thereof with respect to the Fund, the Common Shares, the Registration Statement and the Prospectus, this Sales Agreement and the form and sufficiency of all proceedings taken in connection compliance with the sale and delivery of the Common Shares. Such opinion and proceedings shall fulfill the requirements of this Section 5(f) provisions hereof only if such opinion and proceedings they are satisfactory in all respects form and substance to the Sales Manager. The Fund and the Investment Adviser must have furnished to such counsel such documents as counsel may reasonably request for the purpose of enabling them to render such opinion.
(g) Unless otherwise agreed to by the Sales Manager, Company will furnish the Sales Manager must have received on with such conformed copies of such opinions, certificates, letters and other documents, as the date of this Sales Agreement a signed letter, dated such date, substantially in the form of Schedule C to this Sales Agreement from the independent registered public accounting firm designated in such Schedule. The Sales Manager also must have received as of each time referred to in Section 4(n) a signed letter from such accountants, dated as of the date thereof, confirming on the basis of a review in accordance with the procedures set forth in their earlier letter that nothing has come to their attention during the period from a date not more than five business days before the date of this Sales Agreement, specified in the letter, to a date not more than five business days before such time, that would require any change in their letter referred to in the foregoing sentence. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Sales Agreement will comply only if they are in form and scope shall reasonably satisfactory to counsel for the Sales Manager, provided that any such documents, forms of which are annexed hereto, shall be deemed satisfactory to such counsel if substantially in such formrequest.
Appears in 1 contract
Samples: Sales Agreement (Nexmed Inc)
Conditions of the Sales Manager’s Obligations. 4.1 The obligations of the Sales Manager to sell Common Shares are the Stock as provided herein shall be subject to the accuracy on accuracy, as of the date of this Sales Agreementhereof, and as of each Settlement DateDate contemplated under this Agreement, of the representations and warranties of the Fund and the Investment Adviser in this Sales AgreementCompany herein, to the accuracy and completeness of all material statements made by the Fund and the Investment Adviser or any of their respective officers in any certificate delivered to the Sales Manager or its counsel pursuant to this Sales Agreement, to performance by the Fund and the Investment Adviser Company of their respective its obligations under this Sales Agreement hereunder and to each of the following additional conditions:
(a) The Registration Statement must contemplated by Section 3.1(a) above shall have become been declared effective. The Prospectus must have been filed in accordance with Rule 497(b) or (h) or a certificate must have been filed in accordance with Rule 497(j), as the case may be, under the Securities Act.
(b) No stop order suspending the effectiveness of the Registration Statement may be in effect shall have been issued and no proceedings proceeding for such that purpose may be pending before shall have been instituted or, to the knowledge of counsel to the Company or the Sales Manager, threatened by the Commission, and any requests request of the Commission for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) must be shall have been complied with or waived to the Sales Manager's reasonable satisfaction of satisfaction.
(b) The Sales Manager shall not have advised the Company that the disclosures in the Registration Statement or the Prospectus are not reasonably acceptable to the Sales Manager.
(c) Since Except as contemplated in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there must not have been any material change in the Common Shares except as set forth in or contemplated by the Prospectus; (ii) there must shall not have been any material adverse change in the general affairscapital stock of the Company, prospectsor any material adverse change, managementor any development that may reasonably be expected to cause a material adverse change, in the condition (financial or other), business, financial condition net worth or results of operations of the Fund Company, or the Investment Adviser whether or not arising from transactions any adverse change in the ordinary course of business as set forth in or contemplated by the Prospectus; (iii) the Fund must not have sustained rating assigned to any material loss or interference with its business from any court or from legislative or other governmental action, order or decree, whether foreign or domestic, or from any other occurrence not described in the Registration Statement and the Prospectus; and (iv) there must not have occurred any event that makes untrue or incorrect in any material respect any statement or information contained in the Registration Statement or the Prospectus or that is not reflected in the Registration Statement or the Prospectus but should be reflected therein in order to make the statements or information therein (in the case securities of the Prospectus, in light of the circumstances in which they were made) not misleading in any material respect; if, in the judgment of the Sales Manager, any such development referred to in clause (i), (ii), (iii), or (iv) of this paragraph (c) makes it impracticable or inadvisable to consummate the sale and delivery of the Common Shares pursuant to this Sales Agreement at the then current market price of the Common SharesCompany.
(d1) Unless otherwise agreed to by The Sales Manager shall have received at the date of the first sale of Stock hereunder (the "Commencement Date") and at every other date specified in Section 3.1(n) above, opinions of Company Counsel, dated as of the Commencement Date and dated as of such other date, substantially in the form of Schedule A hereto.
(2) The Sales Manager shall have received a letter from Company Counsel authorizing the Sales ManagerManager to rely on the opinion on tax matters delivered by Company Counsel as Exhibit 8.1 to the Registration Statement.
(e) At the Commencement Date and at such other dates specified in Section 3.1(o) above, the Sales Manager must shall have received as a "comfort letter" from Xxxxx Xxxxxxxx LLP, independent public accountants for the Company, or other independent accountants then retained by the Company, dated the date of each Settlement Date delivery thereof, in form and substance satisfactory to the Sales Manager.
(f) The Sales Manager shall have received from the Company a certificate, dated such dateor certificates, signed by the Chief Financial Officer and President or Chief Executive Officer or any Vice President of the President or a Vice-President Company, dated as of the Commencement Date and (unless the chief financial or accounting officer Company is not then selling Stock through the Sales Manager and has not requested the Sales Manager to sell Stock) dated as of the first business day of each calendar month thereafter (each, a "Certificate Date"), to the effect that, to the best of their knowledge based upon reasonable investigation:
(i) The representations and warranties of the Fund Company in this Agreement are true and the Investment Adviser certifying (in their capacity correct, as such officers and, with respect to clauses (ii), (iii) if made at and (vi) below, on behalf as of the Fund and Commencement Date or the Investment Adviser, Certificate Date (as the case may be) that ), and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Commencement Date and each such Certificate Date (i) as the signers have carefully examined the Registration Statement, the Prospectus and this Sales Agreement, case may be);
(ii) No stop order suspending the representations effectiveness of the Fund (with respect Registration Statement has been issued, and no proceeding for that purpose has been instituted or, to the certificates from knowledge of such Fund officersofficer after due inquiry, is threatened, by the Commission;
(iii) and the representations of the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) in this Sales Agreement are accurate on and as of Since the date of this Agreement there has occurred no event required to be set forth in an amendment or supplement to the certificateRegistration Statement or Prospectus that has not been so set forth and there has been no document required to be filed under the Exchange Act and the rules and regulations of the Commission thereunder that upon such filing would be deemed to be incorporated by reference in the Prospectus that has not been so filed; and
(iv) Since the date of this Agreement, (iii) there has not been any material adverse change in the general affairs, prospects, managementassets or properties, business, financial condition or results of operations operations, or condition (financial or otherwise) of the Fund (with respect Company, which has not been described in an amendment or supplement to the certificates from such Fund officers) Registration Statement or the Investment Adviser Prospectus (with respect to the certificates from such officers of the Investment Adviser), which change would materially and adversely affect the ability of the Fund directly or the Investment Adviser, as the case may be, to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement (with respect to the certificates from such officers of the Investment Adviser), whether or not arising from transactions in the ordinary course of business, (iv) with respect to the Fund only, no order suspending the effectiveness of the Registration Statement, prohibiting the sale of any of the Common Shares or otherwise having a material adverse effect on the Fund has been issued and no proceedings for any such purpose are pending before or, to the knowledge of such officers after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic, (v) no order having a material adverse effect on the ability of the Investment Adviser to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement, as the case may be, has been issued and no proceedings for any such purpose are pending before or, to the knowledge of the officers of the Investment Adviser after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic and (vi) each of the Fund (with respect to the certificates from such Fund officers) and the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) has performed all of its respective agreements that this Sales Agreement requires it to perform by such Settlement Date (to the extent not waived in writing by the Sales Managerincorporation).
(eg) Unless otherwise agreed At the Commencement Date and on each Settlement Date, the Company shall have furnished to by the Sales Manager, the Sales Manager must have received such appropriate further information, certificates and documents as of the date of this Sales Agreement and each time referred to in Section 4(m) the opinions dated as of the date thereof substantially in the form of Schedules A and B to this Sales Agreement (modified in the case of times referred to in Section 4(m) as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to that date) from the counsel identified in each such ScheduleManager may reasonably request.
(fh) Unless otherwise agreed to The Sales Manager's participation in the distribution of Stock contemplated by this Agreement shall have been reviewed and found acceptable by the Sales ManagerNASD pursuant to NASD Rule 2710 (Corporate Financing Rule). All such opinions, the Sales Manager must have received as of the date of this Sales Agreement certificates, letters and each time referred to other documents will be in Section 4(m) from its counsel an opinion dated as of the date thereof with respect to the Fund, the Common Shares, the Registration Statement and the Prospectus, this Sales Agreement and the form and sufficiency of all proceedings taken in connection compliance with the sale and delivery of the Common Shares. Such opinion and proceedings shall fulfill the requirements of this Section 5(f) provisions hereof only if such opinion and proceedings they are satisfactory in all respects form and substance to the Sales Manager. The Fund and the Investment Adviser must have furnished to such counsel such documents as counsel may reasonably request for the purpose of enabling them to render such opinion.
(g) Unless otherwise agreed to by the Sales Manager, Company will furnish the Sales Manager must have received on with such conformed copies of such opinions, certificates, letters and other documents, as the date of this Sales Agreement a signed letter, dated such date, substantially in the form of Schedule C to this Sales Agreement from the independent registered public accounting firm designated in such Schedule. The Sales Manager also must have received as of each time referred to in Section 4(n) a signed letter from such accountants, dated as of the date thereof, confirming on the basis of a review in accordance with the procedures set forth in their earlier letter that nothing has come to their attention during the period from a date not more than five business days before the date of this Sales Agreement, specified in the letter, to a date not more than five business days before such time, that would require any change in their letter referred to in the foregoing sentence. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Sales Agreement will comply only if they are in form and scope shall reasonably satisfactory to counsel for the Sales Manager, provided that any such documents, forms of which are annexed hereto, shall be deemed satisfactory to such counsel if substantially in such formrequest.
Appears in 1 contract
Conditions of the Sales Manager’s Obligations. 4.1 The obligations of the Sales Manager to sell Common Shares are the Stock as provided herein shall be subject to the accuracy on accuracy, as of the date of this Sales Agreementhereof, and as of each Settlement DateDate contemplated under this Agreement, of the representations and warranties of the Fund and the Investment Adviser in this Sales AgreementCompany herein, to the accuracy and completeness of all material statements made by the Fund and the Investment Adviser or any of their respective officers in any certificate delivered to the Sales Manager or its counsel pursuant to this Sales Agreement, to performance by the Fund and the Investment Adviser Company of their respective its obligations under this Sales Agreement hereunder and to each of the following additional conditions:
(a) The Registration Statement must contemplated by Section 3.1(a) above shall have become been declared effective. The Prospectus must have been filed in accordance with Rule 497(b) or (h) or a certificate must have been filed in accordance with Rule 497(j), as the case may be, under the Securities Act.
(b) No stop order suspending the effectiveness of the Registration Statement may be in effect shall have been issued and no proceedings proceeding for such that purpose may be pending before shall have been instituted or, to the knowledge of counsel to the Company or the Sales Manager, threatened by the Commission, and any requests request of the Commission for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) must be shall have been complied with or waived to the Sales Manager's reasonable satisfaction of satisfaction. The Stock shall have been listed for trading on the Trading Market.
(b) The Sales Manager shall not have advised the Company that the disclosures in the Registration Statement or the Prospectus are not reasonably acceptable to the Sales Manager.
(c) Since Except as contemplated in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there must not have been any material change in the Common Shares except as set forth in or contemplated by the Prospectus; (ii) there must shall not have been any material adverse change in the general affairscapital stock of the Company, prospectsor any material adverse change, managementor any development that may reasonably be expected to cause a material adverse change, in the condition (financial or other), business, financial condition net worth or results of operations of the Fund Company, or the Investment Adviser whether or not arising from transactions any adverse change in the ordinary course of business as set forth in or contemplated by the Prospectus; (iii) the Fund must not have sustained rating assigned to any material loss or interference with its business from any court or from legislative or other governmental action, order or decree, whether foreign or domestic, or from any other occurrence not described in the Registration Statement and the Prospectus; and (iv) there must not have occurred any event that makes untrue or incorrect in any material respect any statement or information contained in the Registration Statement or the Prospectus or that is not reflected in the Registration Statement or the Prospectus but should be reflected therein in order to make the statements or information therein (in the case securities of the Prospectus, in light Company.
(1) The Sales Manager shall have received at the date of the circumstances first sale of Stock hereunder (the "Commencement Date") and at every other date specified in which they were madeSection 3.1(n) not misleading in any material respect; ifabove, opinions of Company Counsel, dated as of the Commencement Date and dated as of such other date, in the judgment form of the Sales Manager, any such development referred to in clause (i), (ii), (iii), or (iv) of this paragraph (c) makes it impracticable or inadvisable to consummate the sale and delivery of the Common Shares pursuant to this Sales Agreement at the then current market price of the Common SharesSchedule A hereto.
(d2) Unless otherwise agreed to by The Sales Manager shall have received a letter from Company Counsel authorizing the Sales ManagerManager to rely on the opinion on tax matters delivered by Company Counsel as Exhibit 8.1 to the Registration Statement.
(e) At the Commencement Date and at such other dates specified in Section 3.1(o) above, the Sales Manager must shall have received as a "comfort letter" from Ernst & Young LLP, independent public accountants for the Company, or other independent accountants then retained by the Company, dated the date of each Settlement Date delivery thereof, in form and substance satisfactory to the Sales Manager.
(f) The Sales Manager shall have received from the Company a certificate, dated such dateor certificates, signed by the Chief Financial Officer and President or Chief Executive Officer or any Vice President of the President or a Vice-President Company, dated as of the Commencement Date and (unless the chief financial or accounting officer Company is not then selling Stock through the Sales Manager and has not requested the Sales Manager to sell Stock) dated as of the first business day of each calendar month thereafter (each, a "Certificate Date"), to the effect that, to the best of their knowledge based upon reasonable investigation:
(i) The representations and warranties of the Fund Company in this Agreement are true and the Investment Adviser certifying (in their capacity correct, as such officers and, with respect to clauses (ii), (iii) if made at and (vi) below, on behalf as of the Fund and Commencement Date or the Investment Adviser, Certificate Date (as the case may be) that ), and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Commencement Date and each such Certificate Date (i) as the signers have carefully examined the Registration Statementcase may be), the Prospectus and including all conditions in this Sales Agreement, Article IV;
(ii) No stop order suspending the representations effectiveness of the Fund (with respect Registration Statement has been issued, and no proceeding for that purpose has been instituted or, to the certificates from knowledge of such Fund officersofficer after due inquiry, is threatened, by the Commission;
(iii) and the representations of the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) in this Sales Agreement are accurate on and as of Since the date of this Agreement there has occurred no event required to be set forth in an amendment or supplement to the certificateRegistration Statement or Prospectus that has not been so set forth and there has been no document required to be filed under the Exchange Act and the rules and regulations of the Commission thereunder that upon such filing would be deemed to be incorporated by reference in the Prospectus that has not been so filed; and
(iv) Since the date of this Agreement, (iii) there has not been any material adverse change in the general affairs, prospects, managementassets or properties, business, financial condition or results of operations operations, or condition (financial or otherwise) of the Fund (with respect Company, which has not been described in an amendment or supplement to the certificates from such Fund officers) Registration Statement or the Investment Adviser Prospectus (with respect to the certificates from such officers of the Investment Adviser), which change would materially and adversely affect the ability of the Fund directly or the Investment Adviser, as the case may be, to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement (with respect to the certificates from such officers of the Investment Adviser), whether or not arising from transactions in the ordinary course of business, (iv) with respect to the Fund only, no order suspending the effectiveness of the Registration Statement, prohibiting the sale of any of the Common Shares or otherwise having a material adverse effect on the Fund has been issued and no proceedings for any such purpose are pending before or, to the knowledge of such officers after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic, (v) no order having a material adverse effect on the ability of the Investment Adviser to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement, as the case may be, has been issued and no proceedings for any such purpose are pending before or, to the knowledge of the officers of the Investment Adviser after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic and (vi) each of the Fund (with respect to the certificates from such Fund officers) and the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) has performed all of its respective agreements that this Sales Agreement requires it to perform by such Settlement Date (to the extent not waived in writing by the Sales Managerincorporation).
(eg) Unless otherwise agreed At the Commencement Date and on each Settlement Date, the Company shall have furnished to by the Sales Manager, the Sales Manager must have received such appropriate further information, certificates and documents as of the date of this Sales Agreement and each time referred to in Section 4(m) the opinions dated as of the date thereof substantially in the form of Schedules A and B to this Sales Agreement (modified in the case of times referred to in Section 4(m) as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to that date) from the counsel identified in each such Schedule.
(f) Unless otherwise agreed to by the Sales Manager, the Sales Manager must have received as of the date of this Sales Agreement may reasonably request. All such opinions, certificates, letters and each time referred to other documents will be in Section 4(m) from its counsel an opinion dated as of the date thereof with respect to the Fund, the Common Shares, the Registration Statement and the Prospectus, this Sales Agreement and the form and sufficiency of all proceedings taken in connection compliance with the sale and delivery of the Common Shares. Such opinion and proceedings shall fulfill the requirements of this Section 5(f) provisions hereof only if such opinion and proceedings they are satisfactory in all respects form and substance to the Sales Manager. The Fund and the Investment Adviser must have furnished to such counsel such documents as counsel may reasonably request for the purpose of enabling them to render such opinion.
(g) Unless otherwise agreed to by the Sales Manager, Company will furnish the Sales Manager must have received on with such conformed copies of such opinions, certificates, letters and other documents, as the date of this Sales Agreement a signed letter, dated such date, substantially in the form of Schedule C to this Sales Agreement from the independent registered public accounting firm designated in such Schedule. The Sales Manager also must have received as of each time referred to in Section 4(n) a signed letter from such accountants, dated as of the date thereof, confirming on the basis of a review in accordance with the procedures set forth in their earlier letter that nothing has come to their attention during the period from a date not more than five business days before the date of this Sales Agreement, specified in the letter, to a date not more than five business days before such time, that would require any change in their letter referred to in the foregoing sentence. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Sales Agreement will comply only if they are in form and scope shall reasonably satisfactory to counsel for the Sales Manager, provided that any such documents, forms of which are annexed hereto, shall be deemed satisfactory to such counsel if substantially in such formrequest.
Appears in 1 contract
Conditions of the Sales Manager’s Obligations. 4.1 The obligations of the Sales Manager to sell Common Shares are the Stock as provided herein shall be subject to the accuracy on accuracy, as of the date of this Sales Agreementhereof, and as of each Settlement DateDate contemplated under this Agreement, of the representations and warranties of the Fund and the Investment Adviser in this Sales AgreementCompany herein, to the accuracy and completeness of all material statements made by the Fund and the Investment Adviser or any of their respective officers in any certificate delivered to the Sales Manager or its counsel pursuant to this Sales Agreement, to performance by the Fund and the Investment Adviser Company of their respective its obligations under this Sales Agreement hereunder and to each of the following additional conditions:
(a) The post-effective amendment to the Registration Statement must contemplated by Section 3.1(a) shall have become been declared effective. The Prospectus must have been filed in accordance with Rule 497(b) or (h) or a certificate must have been filed in accordance with Rule 497(j), as the case may be, under the Securities Act.
(b) No stop order suspending the effectiveness of the Registration Statement may be in effect shall have been issued and no proceedings proceeding for such that purpose may be pending before shall have been instituted or, to the knowledge of counsel to the Company or the Sales Manager, threatened by the Commission, and any requests request of the Commission for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) must be shall have been complied with or waived to the reasonable satisfaction of the Sales Manager's satisfaction.
(b) The Sales Manager shall not have advised the Company that the Registration Statement or the Prospectus, or any amendment or supplement thereto, is not acceptable to the Sales Manager in its good faith opinion.
(c) Since Except as contemplated in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there must shall not have been any material change in the Common Shares except as set forth in capital stock of the Company, or contemplated by the Prospectus; (ii) there must not have been any material adverse change change, or any development that may reasonably be expected to cause a material adverse change, in the general affairscondition (financial or other), business, prospects, management, business, financial condition net worth or results of operations of the Fund or the Investment Adviser whether or not arising from transactions in the ordinary course of business Company and its subsidiaries taken as set forth in or contemplated by the Prospectus; (iii) the Fund must not have sustained any material loss or interference with its business from any court or from legislative or other governmental action, order or decree, whether foreign or domestic, or from any other occurrence not described in the Registration Statement and the Prospectus; and (iv) there must not have occurred any event that makes untrue or incorrect in any material respect any statement or information contained in the Registration Statement or the Prospectus or that is not reflected in the Registration Statement or the Prospectus but should be reflected therein in order to make the statements or information therein (in the case of the Prospectus, in light of the circumstances in which they were made) not misleading in any material respect; if, in the judgment of the Sales Manager, any such development referred to in clause (i), (ii), (iii), or (iv) of this paragraph (c) makes it impracticable or inadvisable to consummate the sale and delivery of the Common Shares pursuant to this Sales Agreement at the then current market price of the Common Sharesa whole.
(d) Unless otherwise agreed to by the Sales Manager, the The Sales Manager must shall have received as of each Settlement Date a certificate, dated such date, of the President or a Vice-President and the chief financial or accounting officer of each of the Fund and the Investment Adviser certifying (in their capacity as such officers and, with respect to clauses (ii), (iii) and (vi) below, on behalf of the Fund and the Investment Adviser, as the case may be) that (i) the signers have carefully examined the Registration Statement, the Prospectus and this Sales Agreement, (ii) the representations of the Fund (with respect to the certificates from such Fund officers) and the representations of the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) in this Sales Agreement are accurate on and as of at the date of the certificate, (iii) there has not been any material adverse change in the general affairs, prospects, management, business, financial condition or results of operations of the Fund (with respect to the certificates from such Fund officers) or the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser), which change would materially and adversely affect the ability of the Fund or the Investment Adviser, as the case may be, to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement (with respect to the certificates from such officers of the Investment Adviser), whether or not arising from transactions in the ordinary course of business, (iv) with respect to the Fund only, no order suspending the effectiveness of the Registration Statement, prohibiting the first sale of any of Stock hereunder (the Common Shares or otherwise having a material adverse effect on the Fund has been issued and no proceedings for any such purpose are pending before or, to the knowledge of such officers after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic, (v) no order having a material adverse effect on the ability of the Investment Adviser to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement, as the case may be, has been issued and no proceedings for any such purpose are pending before or, to the knowledge of the officers of the Investment Adviser after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic and (vi) each of the Fund (with respect to the certificates from such Fund officers"Commencement Date") and the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) has performed all of its respective agreements that this Sales Agreement requires it to perform by such Settlement Date (to the extent not waived in writing by the Sales Manager).
(e) Unless otherwise agreed to by the Sales Manager, the Sales Manager must have received as of the at every other date of this Sales Agreement and each time referred to specified in Section 4(m3.1(n) the hereof, opinions dated as of the date thereof substantially in the form of Schedules A and B to this Sales Agreement (modified in the case of times referred to in Section 4(m) as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to that date) from the counsel identified in each such Schedule.
(f) Unless otherwise agreed to by the Sales Manager, the Sales Manager must have received as of the date of this Sales Agreement and each time referred to in Section 4(m) from its counsel an opinion dated as of the date thereof with respect to the Fund, the Common Shares, the Registration Statement and the Prospectus, this Sales Agreement and the form and sufficiency of all proceedings taken in connection with the sale and delivery of the Common Shares. Such opinion and proceedings shall fulfill the requirements of this Section 5(f) only if such opinion and proceedings are satisfactory in all respects to the Sales Manager. The Fund and the Investment Adviser must have furnished to such counsel such documents as counsel may reasonably request for the purpose of enabling them to render such opinion.
(g) Unless otherwise agreed to by the Sales Manager, the Sales Manager must have received on the date of this Sales Agreement a signed letter, dated such date, substantially in the form of Schedule C to this Sales Agreement from the independent registered public accounting firm designated in such Schedule. The Sales Manager also must have received as of each time referred to in Section 4(n) a signed letter from such accountantsCompany Counsel, dated as of the date thereof, confirming on the basis Commencement Date and dated as of a review in accordance with the procedures set forth in their earlier letter that nothing has come to their attention during the period from a date not more than five business days before the date of this Sales Agreement, specified in the letter, to a date not more than five business days before such time, that would require any change in their letter referred to in the foregoing sentence. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Sales Agreement will comply only if they are in form and scope reasonably satisfactory to counsel for the Sales Manager, provided that any such documents, forms of which are annexed hereto, shall be deemed satisfactory to such counsel if substantially in such form.other
Appears in 1 contract
Samples: Sales Agreement (Kinder Morgan Energy Partners L P)
Conditions of the Sales Manager’s Obligations. 4.1 The obligations of the Sales Manager to sell Common Shares are the Stock as provided herein shall be subject to the accuracy on accuracy, as of the date of this Sales Agreementhereof, and as of each Settlement DateDate contemplated under this Agreement, of the representations and warranties of the Fund and the Investment Adviser in this Sales AgreementCompany herein, to the accuracy and completeness of all material statements made by the Fund and the Investment Adviser or any of their respective officers in any certificate delivered to the Sales Manager or its counsel pursuant to this Sales Agreement, to performance by the Fund and the Investment Adviser Company of their respective its obligations under this Sales Agreement hereunder and to each of the following additional conditions:
(a) The Registration Statement must shall have become been declared effective. The Prospectus must have been filed in accordance with Rule 497(b) or (h) or a certificate must have been filed in accordance with Rule 497(j), as the case may be, under the Securities Act.
(b) No stop order suspending the effectiveness of the Registration Statement may be in effect shall have been issued and no proceedings proceeding for such that purpose may be pending before shall have been instituted or, to the knowledge of counsel to the Company or the Sales Manager, threatened by the Commission, and any requests request of the Commission for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) must be shall have been complied with or waived to the Sales Manager’s reasonable satisfaction of satisfaction.
(b) The Sales Manager shall not have advised the Company that the disclosures in the Registration Statement or the Prospectus are not reasonably acceptable to the Sales Manager.
(c) Since Except as contemplated in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there must not have been any material change in the Common Shares except as set forth in or contemplated by the Prospectus; (ii) there must shall not have been any material adverse change in the general affairscapital stock of the Company, prospectsor any material adverse change, managementor any development that may reasonably be expected to cause a material adverse change, in the condition (financial or other), business, financial condition net worth or results of operations of the Fund Company, or the Investment Adviser whether or not arising from transactions any adverse change in the ordinary course of business as set forth in or contemplated by the Prospectus; (iii) the Fund must not have sustained rating assigned to any material loss or interference with its business from any court or from legislative or other governmental action, order or decree, whether foreign or domestic, or from any other occurrence not described in the Registration Statement and the Prospectus; and (iv) there must not have occurred any event that makes untrue or incorrect in any material respect any statement or information contained in the Registration Statement or the Prospectus or that is not reflected in the Registration Statement or the Prospectus but should be reflected therein in order to make the statements or information therein (in the case securities of the Prospectus, in light of the circumstances in which they were made) not misleading in any material respect; if, in the judgment of the Sales Manager, any such development referred to in clause (i), (ii), (iii), or (iv) of this paragraph (c) makes it impracticable or inadvisable to consummate the sale and delivery of the Common Shares pursuant to this Sales Agreement at the then current market price of the Common SharesCompany.
(d) Unless otherwise agreed to by The Sales Manager shall have received at the Sales Managerdate of the first sale of Stock hereunder (the “Commencement Date”) and at every other date specified in Section 3.1(n) above, opinions of Company Counsel, dated as of the Commencement Date and dated as of such other date, covering the provisions set forth Schedule A hereto.
(e) At the Commencement Date and at such other dates specified in Section 3.1(o) above, the Sales Manager must shall have received as a “comfort letter” from KPMG LLP, independent public accountants for the Company, or other independent accountants then retained by the Company, dated the date of each Settlement Date delivery thereof, in form and substance satisfactory to the Sales Manager.
(f) The Sales Manager shall have received from the Company a certificate, dated such dateor certificates, signed by two of the Chief Executive Officer, Chief Financial Officer or any Vice President or a Vice-President of the Company, dated as of the Commencement Date and (unless the chief financial or accounting officer Company is not then selling Stock through the Sales Manager and has not requested the Sales Manager to sell Stock) dated as of the first business day of each calendar month thereafter (each, a “Certificate Date”), to the effect that, to the best of their knowledge based upon reasonable investigation:
(i) The representations and warranties of the Fund Company in this Agreement are true and the Investment Adviser certifying (in their capacity correct, as such officers and, with respect to clauses (ii), (iii) if made at and (vi) below, on behalf as of the Fund and Commencement Date or the Investment Adviser, Certificate Date (as the case may be) that ), and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Commencement Date and each such Certificate Date (i) as the signers have carefully examined the Registration Statement, the Prospectus and this Sales Agreement, case may be);
(ii) No stop order suspending the representations effectiveness of the Fund (with respect Registration Statement has been issued, and no proceeding for that purpose has been instituted or, to the certificates from knowledge of such Fund officersofficer after due inquiry, is threatened, by the Commission;
(iii) and the representations of the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) in this Sales Agreement are accurate on and as of Since the date of this Agreement there has occurred no event required to be set forth in an amendment or supplement to the certificateRegistration Statement or Prospectus that has not been so set forth and there has been no document required to be filed under the Exchange Act and the rules and regulations of the Commission thereunder that upon such filing would be deemed to be incorporated by reference in the Prospectus that has not been so filed; and
(iv) Since the date of this Agreement, (iii) there has not been any material adverse change in the general affairs, prospects, managementassets or properties, business, financial condition or results of operations operations, or condition (financial or otherwise) of the Fund (with respect Company, which has not been described in an amendment or supplement to the certificates from such Fund officers) Registration Statement or the Investment Adviser Prospectus (with respect to the certificates from such officers of the Investment Adviser), which change would materially and adversely affect the ability of the Fund directly or the Investment Adviser, as the case may be, to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement (with respect to the certificates from such officers of the Investment Adviser), whether or not arising from transactions in the ordinary course of business, (iv) with respect to the Fund only, no order suspending the effectiveness of the Registration Statement, prohibiting the sale of any of the Common Shares or otherwise having a material adverse effect on the Fund has been issued and no proceedings for any such purpose are pending before or, to the knowledge of such officers after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic, (v) no order having a material adverse effect on the ability of the Investment Adviser to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement, as the case may be, has been issued and no proceedings for any such purpose are pending before or, to the knowledge of the officers of the Investment Adviser after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic and (vi) each of the Fund (with respect to the certificates from such Fund officers) and the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) has performed all of its respective agreements that this Sales Agreement requires it to perform by such Settlement Date (to the extent not waived in writing by the Sales Managerincorporation).
(eg) Unless otherwise agreed At the Commencement Date and on each Settlement Date, the Company shall have furnished to by the Sales Manager, the Sales Manager must have received such appropriate further information, certificates and documents as of the date of this Sales Agreement and each time referred to in Section 4(m) the opinions dated as of the date thereof substantially in the form of Schedules A and B to this Sales Agreement (modified in the case of times referred to in Section 4(m) as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to that date) from the counsel identified in each such ScheduleManager may reasonably request.
(fh) Unless otherwise agreed to The Sales Manager’s participation in the distribution of Stock contemplated by this Agreement shall have been reviewed and found acceptable by the Sales ManagerNASD pursuant to NASD Rule 2710 (Corporate Financing Rule). All such opinions, the Sales Manager must have received as of the date of this Sales Agreement certificates, letters and each time referred to other documents will be in Section 4(m) from its counsel an opinion dated as of the date thereof with respect to the Fund, the Common Shares, the Registration Statement and the Prospectus, this Sales Agreement and the form and sufficiency of all proceedings taken in connection compliance with the sale and delivery of the Common Shares. Such opinion and proceedings shall fulfill the requirements of this Section 5(f) provisions hereof only if such opinion and proceedings they are satisfactory in all respects form and substance to the Sales Manager. The Fund and the Investment Adviser must have furnished to such counsel such documents as counsel may reasonably request for the purpose of enabling them to render such opinion.
(g) Unless otherwise agreed to by the Sales Manager, Company will furnish the Sales Manager must have received on with such conformed copies of such opinions, certificates, letters and other documents, as the date of this Sales Agreement a signed letter, dated such date, substantially in the form of Schedule C to this Sales Agreement from the independent registered public accounting firm designated in such Schedule. The Sales Manager also must have received as of each time referred to in Section 4(n) a signed letter from such accountants, dated as of the date thereof, confirming on the basis of a review in accordance with the procedures set forth in their earlier letter that nothing has come to their attention during the period from a date not more than five business days before the date of this Sales Agreement, specified in the letter, to a date not more than five business days before such time, that would require any change in their letter referred to in the foregoing sentence. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Sales Agreement will comply only if they are in form and scope shall reasonably satisfactory to counsel for the Sales Manager, provided that any such documents, forms of which are annexed hereto, shall be deemed satisfactory to such counsel if substantially in such formrequest.
Appears in 1 contract
Conditions of the Sales Manager’s Obligations. 4.1 The obligations of the Sales Manager to sell Common Shares are the Stock as provided herein shall be subject to the accuracy on accuracy, as of the date of this Sales Agreementhereof, and as of each Settlement DateDate contemplated under this Agreement, of the representations and warranties of the Fund and the Investment Adviser in this Sales AgreementCompany herein, to the accuracy and completeness of all material statements made by the Fund and the Investment Adviser or any of their respective officers in any certificate delivered to the Sales Manager or its counsel pursuant to this Sales Agreement, to performance by the Fund and the Investment Adviser Company of their respective its obligations under this Sales Agreement hereunder and to each of the following additional conditions:
(a) The Registration Statement must contemplated by Section 3.1(a) shall have become been declared effective. The Prospectus must have been filed in accordance with Rule 497(b) or (h) or a certificate must have been filed in accordance with Rule 497(j), as the case may be, under the Securities Act.
(b) No stop order suspending the effectiveness of the Registration Statement may be in effect shall have been issued and no proceedings proceeding for such that purpose may be pending before shall have been instituted or, to the knowledge of counsel to the Company or the Sales Manager, threatened by the Commission, and any requests request of the Commission for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) must be shall have been complied with or waived to the reasonable satisfaction of the Sales Manager's reasonable satisfaction.
(b) The Sales Manager shall not have advised the Company that the Registration Statement or the Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact that in the Sales Manager's reasonable opinion is material, or omits to state a fact that in the Sales Manager's reasonable opinion is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) Since Except as contemplated in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there must shall not have been any material change in the Common Shares except as set forth in capital stock of the Company, or contemplated by the Prospectus; (ii) there must not have been any material adverse change change, or any development that may reasonably be expected to cause a material adverse change, in the general affairscondition (financial or other), business, prospects, management, business, financial condition net worth or results of operations of the Fund Company, or the Investment Adviser whether or not arising from transactions any adverse change in the ordinary course of business as set forth in or contemplated by the Prospectus; (iii) the Fund must not have sustained rating assigned to any material loss or interference with its business from any court or from legislative or other governmental action, order or decree, whether foreign or domestic, or from any other occurrence not described in the Registration Statement and the Prospectus; and (iv) there must not have occurred any event that makes untrue or incorrect in any material respect any statement or information contained in the Registration Statement or the Prospectus or that is not reflected in the Registration Statement or the Prospectus but should be reflected therein in order to make the statements or information therein (in the case securities of the Prospectus, in light of the circumstances in which they were made) not misleading in any material respect; if, in the judgment of the Sales Manager, any such development referred to in clause (i), (ii), (iii), or (iv) of this paragraph (c) makes it impracticable or inadvisable to consummate the sale and delivery of the Common Shares pursuant to this Sales Agreement at the then current market price of the Common SharesCompany.
(d1) Unless otherwise agreed to by the Sales Manager, the The Sales Manager must shall have received as of each Settlement Date a certificate, dated such date, of the President or a Vice-President and the chief financial or accounting officer of each of the Fund and the Investment Adviser certifying (in their capacity as such officers and, with respect to clauses (ii), (iii) and (vi) below, on behalf of the Fund and the Investment Adviser, as the case may be) that (i) the signers have carefully examined the Registration Statement, the Prospectus and this Sales Agreement, (ii) the representations of the Fund (with respect to the certificates from such Fund officers) and the representations of the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) in this Sales Agreement are accurate on and as of at the date of the certificatefirst sale of Stock hereunder (the "Commencement Date") and at every other date specified in Section 3.1(n) hereof, (iii) there has not been any material adverse change opinions of Company Counsel, dated as of the Commencement Date and dated as of such other date, in the general affairs, prospects, management, business, financial condition or results form of operations of Exhibit A hereto.
(2) The Sales Manager shall have received a letter from Company Counsel authorizing the Fund (with respect Sales Manager to rely on the opinion on tax matters delivered by Company Counsel as Exhibit 8.1 to the certificates from such Fund officers) or the Investment Adviser Registration Statement (with respect which opinion must be reasonably satisfactory to the certificates from such officers of the Investment Adviser), which change would materially and adversely affect the ability of the Fund or the Investment Adviser, as the case may be, to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement (with respect to the certificates from such officers of the Investment Adviser), whether or not arising from transactions in the ordinary course of business, (iv) with respect to the Fund only, no order suspending the effectiveness of the Registration Statement, prohibiting the sale of any of the Common Shares or otherwise having a material adverse effect on the Fund has been issued and no proceedings for any such purpose are pending before or, to the knowledge of such officers after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic, (v) no order having a material adverse effect on the ability of the Investment Adviser to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement, as the case may be, has been issued and no proceedings for any such purpose are pending before or, to the knowledge of the officers of the Investment Adviser after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic and (vi) each of the Fund (with respect to the certificates from such Fund officers) and the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) has performed all of its respective agreements that this Sales Agreement requires it to perform by such Settlement Date (to the extent not waived in writing by the Sales Manager).
(e) Unless otherwise agreed At the Commencement Date and at such other dates specified in Section 3.1(o) hereof, the Sales Manager shall have received a "comfort letter" from Ernst & Young LLP, independent public accountants for the Company, or other independent accountants satisfactory to by the Sales Manager, the Sales Manager must have received as of dated the date of this Sales Agreement delivery thereof, in form and each time referred to in Section 4(m) the opinions dated as of the date thereof substantially in the form of Schedules A and B to this Sales Agreement (modified in the case of times referred to in Section 4(m) as necessary to relate substance satisfactory to the Registration Statement and the Prospectus as amended and supplemented to that date) from the counsel identified in each such ScheduleSales Manager.
(f) Unless otherwise agreed to by the Sales Manager, the Sales Manager must have received as of the date of this Sales Agreement and each time referred to in Section 4(m) from its counsel an opinion dated as of the date thereof with respect to the Fund, the Common Shares, the Registration Statement and the Prospectus, this Sales Agreement and the form and sufficiency of all proceedings taken in connection with the sale and delivery of the Common Shares. Such opinion and proceedings shall fulfill the requirements of this Section 5(f) only if such opinion and proceedings are satisfactory in all respects to the Sales Manager. The Fund and the Investment Adviser must have furnished to such counsel such documents as counsel may reasonably request for the purpose of enabling them to render such opinion.
(g) Unless otherwise agreed to by the Sales Manager, the Sales Manager must have received on the date of this Sales Agreement a signed letter, dated such date, substantially in the form of Schedule C to this Sales Agreement from the independent registered public accounting firm designated in such Schedule. The Sales Manager also must shall have received as from the Company a certificate, or certificates, signed by the Chief Financial Officer and Executive Vice President of each time referred to in Section 4(n) a signed letter from such accountantsthe Company, dated as of the date thereofCommencement Date and (unless the Company is not then selling Stock through the Sales Manager and has not requested the Sales Manager to sell Stock) dated as of the first business day of each calendar month thereafter (each, confirming on the basis of a review in accordance with the procedures set forth in their earlier letter that nothing has come to their attention during the period from a date not more than five business days before the date of this Sales Agreement, specified in the letter"Certificate Date"), to a date not more than five business days before such timethe effect that, that would require any change in to the best of their letter referred to in knowledge based upon reasonable investigation:
(i) The representations and warranties of the foregoing sentence. All opinions, letters, evidence and certificates mentioned above or elsewhere Company in this Sales Agreement will comply only are true and correct, as if they are in form made at and scope reasonably satisfactory to counsel for as of the Sales ManagerCommencement Date or the Certificate Date (as the case may be), provided that any such documents, forms of which are annexed hereto, shall be deemed satisfactory to such counsel if substantially in such form.and the Company has complied with all the agreements and
Appears in 1 contract
Conditions of the Sales Manager’s Obligations. 4.1 The obligations of the Sales Manager to sell Common Shares are the Stock as provided herein shall be subject to the accuracy on accuracy, as of the date of this Sales Agreementhereof, and as of each Settlement DateDate contemplated under this Agreement, of the representations and warranties of the Fund and the Investment Adviser in this Sales AgreementCompany herein, to the accuracy and completeness of all material statements made by the Fund and the Investment Adviser or any of their respective officers in any certificate delivered to the Sales Manager or its counsel pursuant to this Sales Agreement, to performance by the Fund and the Investment Adviser Company of their respective its obligations under this Sales Agreement hereunder and to each of the following additional conditions:
(a) The Registration Statement must contemplated by Section 3.1(a) above shall have become been declared effective. The Prospectus must have been filed in accordance with Rule 497(b) or (h) or a certificate must have been filed in accordance with Rule 497(j), as the case may be, under the Securities Act.
(b) No stop order suspending the effectiveness of the Registration Statement may be in effect shall have been issued and no proceedings proceeding for such that purpose may be pending before shall have been instituted or, to the knowledge of counsel to the Company or the Sales Manager, threatened by the Commission, and any requests request of the Commission for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) must be shall have been complied with or waived to the Sales Manager's reasonable satisfaction of satisfaction.
(b) The Sales Manager shall not have advised the Company that the disclosures in the Registration Statement or the Prospectus are not reasonably acceptable to the Sales Manager.
(c) Since Except as contemplated in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there must not have been any material change in the Common Shares except as set forth in or contemplated by the Prospectus; (ii) there must shall not have been any material adverse change in the general affairscapital stock of the Company, prospectsor any material adverse change, managementor any development that may reasonably be expected to cause a material adverse change, in the condition (financial or other), business, financial condition net worth or results of operations of the Fund Company, or the Investment Adviser whether or not arising from transactions any adverse change in the ordinary course of business as set forth in or contemplated by the Prospectus; (iii) the Fund must not have sustained rating assigned to any material loss or interference with its business from any court or from legislative or other governmental action, order or decree, whether foreign or domestic, or from any other occurrence not described in the Registration Statement and the Prospectus; and (iv) there must not have occurred any event that makes untrue or incorrect in any material respect any statement or information contained in the Registration Statement or the Prospectus or that is not reflected in the Registration Statement or the Prospectus but should be reflected therein in order to make the statements or information therein (in the case securities of the Prospectus, in light of the circumstances in which they were made) not misleading in any material respect; if, in the judgment of the Sales Manager, any such development referred to in clause (i), (ii), (iii), or (iv) of this paragraph (c) makes it impracticable or inadvisable to consummate the sale and delivery of the Common Shares pursuant to this Sales Agreement at the then current market price of the Common SharesCompany.
(d) Unless otherwise agreed to by The Sales Manager shall have received at the Sales Managerdate of the first sale of Stock hereunder (the "Commencement Date") and at every other date specified in Section 3.1(n) above, opinions of Company Counsel, dated as of the Commencement Date and dated as of such other date, in the form of Schedule A hereto.
(e) At the Commencement Date and at such other dates specified in Section 3.1(o) above, the Sales Manager must shall have received as a "comfort letter" from Ernst & Young LLP, independent public accountants for the Company, or other independent accountants then retained by the Company, dated the date of each Settlement Date delivery thereof, in form and substance satisfactory to the Sales Manager.
(f) The Sales Manager shall have received from the Company a certificate, dated such dateor certificates, signed by the Chief Financial Officer and President or Chief Executive Officer or any Vice President of the President or a Vice-President Company, dated as of the Commencement Date and (unless the chief financial or accounting officer Company is not then selling Stock through the Sales Manager and has not requested the Sales Manager to sell Stock) dated as of the first business day of each calendar month thereafter (each, a "Certificate Date"), to the effect that, to the best of their knowledge based upon reasonable investigation:
(i) The representations and warranties of the Fund Company in this Agreement are true and the Investment Adviser certifying (in their capacity correct, as such officers and, with respect to clauses (ii), (iii) if made at and (vi) below, on behalf as of the Fund and Commencement Date or the Investment Adviser, Certificate Date (as the case may be) that ), and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Commencement Date and each such Certificate Date (i) as the signers have carefully examined the Registration Statement, the Prospectus and this Sales Agreement, case may be);
(ii) No stop order suspending the representations effectiveness of the Fund (with respect Registration Statement has been issued, and no proceeding for that purpose has been instituted or, to the certificates from knowledge of such Fund officersofficer after due inquiry, is threatened, by the Commission;
(iii) and the representations of the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) in this Sales Agreement are accurate on and as of Since the date of this Agreement there has occurred no event required to be set forth in an amendment or supplement to the certificateRegistration Statement or Prospectus that has not been so set forth and there has been no document required to be filed under the Exchange Act and the rules and regulations of the Commission thereunder that upon such filing would be deemed to be incorporated by reference in the Prospectus that has not been so filed; and
(iv) Since the date of this Agreement, (iii) there has not been any material adverse change in the general affairs, prospects, managementassets or properties, business, financial condition or results of operations operations, or condition (financial or otherwise) of the Fund (with respect Company, which has not been described in an amendment or supplement to the certificates from such Fund officers) Registration Statement or the Investment Adviser Prospectus (with respect to the certificates from such officers of the Investment Adviser), which change would materially and adversely affect the ability of the Fund directly or the Investment Adviser, as the case may be, to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement (with respect to the certificates from such officers of the Investment Adviser), whether or not arising from transactions in the ordinary course of business, (iv) with respect to the Fund only, no order suspending the effectiveness of the Registration Statement, prohibiting the sale of any of the Common Shares or otherwise having a material adverse effect on the Fund has been issued and no proceedings for any such purpose are pending before or, to the knowledge of such officers after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic, (v) no order having a material adverse effect on the ability of the Investment Adviser to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement, as the case may be, has been issued and no proceedings for any such purpose are pending before or, to the knowledge of the officers of the Investment Adviser after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic and (vi) each of the Fund (with respect to the certificates from such Fund officers) and the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) has performed all of its respective agreements that this Sales Agreement requires it to perform by such Settlement Date (to the extent not waived in writing by the Sales Managerincorporation).
(eg) Unless otherwise agreed At the Commencement Date and on each Settlement Date, the Company shall have furnished to by the Sales Manager, the Sales Manager must have received such appropriate further information, certificates and documents as of the date of this Sales Agreement and each time referred to in Section 4(m) the opinions dated as of the date thereof substantially in the form of Schedules A and B to this Sales Agreement (modified in the case of times referred to in Section 4(m) as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to that date) from the counsel identified in each such Schedule.
(f) Unless otherwise agreed to by the Sales Manager, the Sales Manager must have received as of the date of this Sales Agreement may reasonably request. All such opinions, certificates, letters and each time referred to other documents will be in Section 4(m) from its counsel an opinion dated as of the date thereof with respect to the Fund, the Common Shares, the Registration Statement and the Prospectus, this Sales Agreement and the form and sufficiency of all proceedings taken in connection compliance with the sale and delivery of the Common Shares. Such opinion and proceedings shall fulfill the requirements of this Section 5(f) provisions hereof only if such opinion and proceedings they are satisfactory in all respects form and substance to the Sales Manager. The Fund and the Investment Adviser must have furnished to such counsel such documents as counsel may reasonably request for the purpose of enabling them to render such opinion.
(g) Unless otherwise agreed to by the Sales Manager, Company will furnish the Sales Manager must have received on with such conformed copies of such opinions, certificates, letters and other documents, as the date of this Sales Agreement a signed letter, dated such date, substantially in the form of Schedule C to this Sales Agreement from the independent registered public accounting firm designated in such Schedule. The Sales Manager also must have received as of each time referred to in Section 4(n) a signed letter from such accountants, dated as of the date thereof, confirming on the basis of a review in accordance with the procedures set forth in their earlier letter that nothing has come to their attention during the period from a date not more than five business days before the date of this Sales Agreement, specified in the letter, to a date not more than five business days before such time, that would require any change in their letter referred to in the foregoing sentence. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Sales Agreement will comply only if they are in form and scope shall reasonably satisfactory to counsel for the Sales Manager, provided that any such documents, forms of which are annexed hereto, shall be deemed satisfactory to such counsel if substantially in such formrequest.
Appears in 1 contract
Conditions of the Sales Manager’s Obligations. 4.1 The obligations of the Sales Manager to sell the Common Shares are Stock as provided herein shall be subject to the accuracy on accuracy, as of the date of this Sales Agreementhereof, and as of each Settlement DateDate contemplated under this Agreement, of the representations and warranties of the Fund and the Investment Adviser in this Sales AgreementCompany herein, to the accuracy and completeness of all material statements made by the Fund and the Investment Adviser or any of their respective officers in any certificate delivered to the Sales Manager or its counsel pursuant to this Sales Agreement, to performance by the Fund and the Investment Adviser Company of their respective its obligations under this Sales Agreement hereunder and to each of the following additional conditions:
(a) The Registration Statement must shall have become been declared effective. The Prospectus must have been filed in accordance with Rule 497(b) or (h) or a certificate must have been filed in accordance with Rule 497(j), as the case may be, under the Securities Act.
(b) No stop order suspending the effectiveness of the Registration Statement may be in effect shall have been issued and no proceedings proceeding for such that purpose may be pending before shall have been instituted or, to the knowledge of counsel to the Company or the Sales Manager, threatened by the Commission, and any requests request of the Commission for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) must be shall have been complied with or waived to the reasonable satisfaction of the Sales Manager’s reasonable satisfaction.
(b) The Sales Manager shall not have advised the Company that the Registration Statement or the Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact that in the Sales Manager’s reasonable opinion is material, or omits to state a fact that in the Sales Manager’s reasonable opinion is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) Since Except as contemplated in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there must shall not have been any material change in the Common Shares except as set forth in capital stock of the Company, or contemplated by the Prospectus; (ii) there must not have been any material adverse change change, or any development that may reasonably be expected to cause a material adverse change, in the general affairscondition (financial or other), business, prospects, management, business, financial condition net worth or results of operations of the Fund Company, or the Investment Adviser whether or not arising from transactions any adverse change in the ordinary course of business as set forth in or contemplated by the Prospectus; (iii) the Fund must not have sustained rating assigned to any material loss or interference with its business from any court or from legislative or other governmental action, order or decree, whether foreign or domestic, or from any other occurrence not described in the Registration Statement and the Prospectus; and (iv) there must not have occurred any event that makes untrue or incorrect in any material respect any statement or information contained in the Registration Statement or the Prospectus or that is not reflected in the Registration Statement or the Prospectus but should be reflected therein in order to make the statements or information therein (in the case securities of the Prospectus, in light of the circumstances in which they were made) not misleading in any material respect; if, in the judgment of the Sales Manager, any such development referred to in clause (i), (ii), (iii), or (iv) of this paragraph (c) makes it impracticable or inadvisable to consummate the sale and delivery of the Common Shares pursuant to this Sales Agreement at the then current market price of the Common SharesCompany.
(d) Unless otherwise agreed The Sales Manager shall have received on every date specified in Section 3.1(n) hereof, and at such other times as may be reasonably requested by the Sales Manager, opinions of Company Counsel, dated as of such date in the form of Exhibit A hereto. The Sales Manager shall have received a letter from Company Counsel authorizing the Sales Manager to rely on the opinion on tax matters delivered by Company Counsel as Exhibit 8.1 to the Registration Statement.
(e) On the dates specified in Section 3.1(o) hereof, and at such other times as may be reasonably requested by the Sales Manager, the Sales Manager must shall have received as a “comfort letter” from Gxxxx Xxxxxxxx LLP, independent public accountants for the Company, or other independent accountants reasonably satisfactory to the Sales Manager, dated the date of each Settlement Date delivery thereof, in form and substance reasonably satisfactory to the Sales Manager.
(f) The Sales Manager (unless the Company is not then selling Common Stock through the Sales Manager and has not requested the Sales Manager to sell Common Stock) shall have received from the Company a certificate, or certificates, signed by (I) the Chief Financial Officer and (II) either the Chief Executive Officer or the Chief Operating Officer, dated such date, as of the President or a Vice-President and the chief financial or accounting officer first business day of each calendar month (each, a “Certificate Date”), to the effect that, to the best of their knowledge based upon reasonable investigation:
(i) The representations and warranties of the Fund Company in this Agreement are true and the Investment Adviser certifying (in their capacity correct, as such officers and, with respect to clauses (ii), (iii) if made at and (vi) below, on behalf as of the Fund and the Investment Adviser, Certificate Date (as the case may be) that ), and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such Certificate Date (i) as the signers have carefully examined the Registration Statement, the Prospectus and this Sales Agreement, case may be);
(ii) No stop order suspending the representations effectiveness of the Fund (with respect Registration Statement has been issued, and no proceeding for that purpose has been instituted or, to the certificates from knowledge of such Fund officersofficer after due inquiry, is threatened, by the Commission;
(iii) and the representations of the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) in this Sales Agreement are accurate on and as of Since the date of this Agreement, there has occurred no event required to be set forth in an amendment or supplement to the certificateRegistration Statement or Prospectus that has not been so set forth and there has been no document required to be filed under the Exchange Act and the rules and regulations of the Commission thereunder that upon such filing would be deemed to be incorporated by reference in the Prospectus that has not been so filed; and
(iv) Since the date of this Agreement, (iii) there has not been any material adverse change in the general affairs, prospects, managementassets or properties, business, financial condition or results of operations operations, prospects or condition (financial or otherwise) of the Fund (with respect to the certificates from such Fund officers) or the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser)Company, which change would materially and adversely affect the ability of the Fund has not been described in an amendment or the Investment Adviser, as the case may be, to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement (with respect to the certificates from such officers of the Investment Adviser), whether or not arising from transactions in the ordinary course of business, (iv) with respect to the Fund only, no order suspending the effectiveness of the Registration Statement, prohibiting the sale of any of the Common Shares or otherwise having a material adverse effect on the Fund has been issued and no proceedings for any such purpose are pending before or, to the knowledge of such officers after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic, (v) no order having a material adverse effect on the ability of the Investment Adviser to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement, as the case may be, has been issued and no proceedings for any such purpose are pending before or, to the knowledge of the officers of the Investment Adviser after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic and (vi) each of the Fund (with respect to the certificates from such Fund officers) and the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) has performed all of its respective agreements that this Sales Agreement requires it to perform by such Settlement Date (to the extent not waived in writing by the Sales Manager).
(e) Unless otherwise agreed to by the Sales Manager, the Sales Manager must have received as of the date of this Sales Agreement and each time referred to in Section 4(m) the opinions dated as of the date thereof substantially in the form of Schedules A and B to this Sales Agreement (modified in the case of times referred to in Section 4(m) as necessary to relate supplement to the Registration Statement or Prospectus (directly or by incorporation). In addition, on each Certificate Date the certificate shall also reconfirm that the shares of Common Stock sold during the immediately preceding month were duly and validly authorized by the Prospectus as amended Company and supplemented that all corporate action required to that date) from be taken for the counsel identified in each authorization issuance and sale of such Scheduleshares of Common Stock had been validly and sufficiently taken.
(fg) Unless otherwise agreed On each Settlement Date, the Company shall have furnished to by the Sales Manager, the Sales Manager must have received such appropriate further information, certificates and documents as of the date of this Sales Agreement Manager may reasonably request. All such opinions, certificates, letters and each time referred to other documents will be in Section 4(m) from its counsel an opinion dated as of compliance with the date thereof with respect to the Fund, the Common Shares, the Registration Statement and the Prospectus, this Sales Agreement and the provisions hereof only if they are reasonably satisfactory in form and sufficiency of all proceedings taken in connection with the sale and delivery of the Common Shares. Such opinion and proceedings shall fulfill the requirements of this Section 5(f) only if such opinion and proceedings are satisfactory in all respects substance to the Sales Manager. The Fund and the Investment Adviser must have furnished to such counsel such documents as counsel may reasonably request for the purpose of enabling them to render such opinion.
(g) Unless otherwise agreed to by the Sales Manager, Company will furnish the Sales Manager must have received on with such conformed copies of such opinions, certificates, letters and other documents as the date of this Sales Agreement a signed letter, dated such date, substantially in the form of Schedule C to this Sales Agreement from the independent registered public accounting firm designated in such Schedule. The Sales Manager also must have received as of each time referred to in Section 4(n) a signed letter from such accountants, dated as of the date thereof, confirming on the basis of a review in accordance with the procedures set forth in their earlier letter that nothing has come to their attention during the period from a date not more than five business days before the date of this Sales Agreement, specified in the letter, to a date not more than five business days before such time, that would require any change in their letter referred to in the foregoing sentence. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Sales Agreement will comply only if they are in form and scope shall reasonably satisfactory to counsel for the Sales Manager, provided that any such documents, forms of which are annexed hereto, shall be deemed satisfactory to such counsel if substantially in such formrequest.
Appears in 1 contract
Conditions of the Sales Manager’s Obligations. 4.1 The obligations of the Sales Manager to sell the Common Shares are Stock as provided herein shall be subject to the accuracy on accuracy, as of the date of this Sales Agreementhereof, and as of each Settlement DateDate contemplated under this Agreement, of the representations and warranties of the Fund and the Investment Adviser in this Sales AgreementCompany herein, to the accuracy and completeness of all material statements made by the Fund and the Investment Adviser or any of their respective officers in any certificate delivered to the Sales Manager or its counsel pursuant to this Sales Agreement, to performance by the Fund and the Investment Adviser Company of their respective its obligations under this Sales Agreement hereunder and to each of the following additional conditions:
(a) The Registration Statement must shall have become been declared effective. The Prospectus must have been filed in accordance with Rule 497(b) or (h) or a certificate must have been filed in accordance with Rule 497(j), as the case may be, under the Securities Act.
(b) No stop order suspending the effectiveness of the Registration Statement may be in effect shall have been issued and no proceedings proceeding for such that purpose may be pending before shall have been instituted or, to the knowledge of counsel to the Company or the Sales Manager, threatened by the Commission, and any requests request of the Commission for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) must be shall have been complied with or waived to the reasonable satisfaction of the Sales Manager's reasonable satisfaction.
(b) The Sales Manager shall not have advised the Company that the Registration Statement or the Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact that in the Sales Manager's reasonable opinion is material, or omits to state a fact that in the Sales Manager's reasonable opinion is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) Since Except as contemplated in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there must shall not have been any material change in the Common Shares except as set forth in capital stock of the Company, or contemplated by the Prospectus; (ii) there must not have been any material adverse change change, or any development that may reasonably be expected to cause a material adverse change, in the general affairscondition (financial or other), business, prospects, management, business, financial condition net worth or results of operations of the Fund Company, or the Investment Adviser whether or not arising from transactions any adverse change in the ordinary course of business as set forth in or contemplated by the Prospectus; (iii) the Fund must not have sustained rating assigned to any material loss or interference with its business from any court or from legislative or other governmental action, order or decree, whether foreign or domestic, or from any other occurrence not described in the Registration Statement and the Prospectus; and (iv) there must not have occurred any event that makes untrue or incorrect in any material respect any statement or information contained in the Registration Statement or the Prospectus or that is not reflected in the Registration Statement or the Prospectus but should be reflected therein in order to make the statements or information therein (in the case securities of the Prospectus, in light of the circumstances in which they were made) not misleading in any material respect; if, in the judgment of the Sales Manager, any such development referred to in clause (i), (ii), (iii), or (iv) of this paragraph (c) makes it impracticable or inadvisable to consummate the sale and delivery of the Common Shares pursuant to this Sales Agreement at the then current market price of the Common SharesCompany.
(d) Unless otherwise agreed The Sales Manager shall have received on or prior to by the date of the first sale of Common Stock hereunder (the "Commencement Date") and at every other date specified in Section 3.1(n) hereof, opinions of Company Counsel, dated as of the Commencement Date or a date prior to the Commencement Date but not earlier than the end of the Company's last completed fiscal quarter and dated as of such other date, in the form of Exhibit A hereto.
(e) At the Commencement Date and at such other dates specified in Section 3.1(o) hereof, the Sales Manager shall have received a "comfort letter" from PricewaterhouseCoopers LLP, independent public accountants for the Company, or other independent accountants reasonably satisfactory to the Sales Manager, dated the date of delivery thereof, in form and substance reasonably satisfactory to the Sales Manager. With respect to the Commencement Date, the comfort letter may be dated prior to the Commencement Date but not earlier than the end of the Company's last completed fiscal quarter.
(f) The Sales Manager shall have received from the Company a certificate, or certificates, signed by (I) the Chief Financial Officer and (II) either the Chief Executive Officer or the Chief Operating Officer, dated as of the Commencement Date and (unless the Company is not then selling Common Stock through the Sales Manager must have received and has not requested the Sales Manager to sell Common Stock) dated as of the first business day of each Settlement Date calendar month thereafter (each, a certificate"Certificate Date"), dated such dateto the effect that, to the best of their knowledge based upon reasonable investigation:
(i) The representations and warranties of the President or a Vice-President Company in this Agreement are true and the chief financial or accounting officer of each correct, as if made at and as of the Fund and Commencement Date or the Investment Adviser certifying Certificate Date (in their capacity as such officers and, with respect to clauses (ii), (iii) and (vi) below, on behalf of the Fund and the Investment Adviser, as the case may be) that ), and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Commencement Date and each such Certificate Date (i) as the signers have carefully examined the Registration Statement, the Prospectus and this Sales Agreement, case may be);
(ii) No stop order suspending the representations effectiveness of the Fund (with respect Registration Statement has been issued, and no proceeding for that purpose has been instituted or, to the certificates from knowledge of such Fund officersofficer after due inquiry, is threatened, by the Commission;
(iii) and the representations of the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) in this Sales Agreement are accurate on and as of Since the date of this Agreement, there has occurred no event required to be set forth in an amendment or supplement to the certificateRegistration Statement or Prospectus that has not been so set forth and there has been no document required to be filed under the Exchange Act and the rules and regulations of the Commission thereunder that upon such filing would be deemed to be incorporated by reference in the Prospectus that has not been so filed; and
(iv) Since the date of this Agreement, (iii) there has not been any material adverse change in the general affairs, prospects, managementassets or properties, business, financial condition or results of operations operations, prospects or condition (financial or otherwise) of the Fund (with respect to the certificates from such Fund officers) or the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser)Company, which change would materially and adversely affect the ability of the Fund has not been described in an amendment or the Investment Adviser, as the case may be, to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement (with respect to the certificates from such officers of the Investment Adviser), whether or not arising from transactions in the ordinary course of business, (iv) with respect to the Fund only, no order suspending the effectiveness of the Registration Statement, prohibiting the sale of any of the Common Shares or otherwise having a material adverse effect on the Fund has been issued and no proceedings for any such purpose are pending before or, to the knowledge of such officers after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic, (v) no order having a material adverse effect on the ability of the Investment Adviser to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement, as the case may be, has been issued and no proceedings for any such purpose are pending before or, to the knowledge of the officers of the Investment Adviser after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic and (vi) each of the Fund (with respect to the certificates from such Fund officers) and the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) has performed all of its respective agreements that this Sales Agreement requires it to perform by such Settlement Date (to the extent not waived in writing by the Sales Manager).
(e) Unless otherwise agreed to by the Sales Manager, the Sales Manager must have received as of the date of this Sales Agreement and each time referred to in Section 4(m) the opinions dated as of the date thereof substantially in the form of Schedules A and B to this Sales Agreement (modified in the case of times referred to in Section 4(m) as necessary to relate supplement to the Registration Statement or Prospectus (directly or by incorporation). In addition, on each Certificate Date the certificate shall also reconfirm that the shares of Common Stock sold during the immediately preceding month were duly and the Prospectus as amended and supplemented to that date) from the counsel identified in each such Schedule.
(f) Unless otherwise agreed to validly authorized by the Sales Manager, the Sales Manager must have received as of the date of this Sales Agreement Company and each time referred that all corporate action required to in Section 4(m) from its counsel an opinion dated as of the date thereof with respect to the Fund, the Common Shares, the Registration Statement and the Prospectus, this Sales Agreement and the form and sufficiency of all proceedings be taken in connection with the sale and delivery of the Common Shares. Such opinion and proceedings shall fulfill the requirements of this Section 5(f) only if such opinion and proceedings are satisfactory in all respects to the Sales Manager. The Fund and the Investment Adviser must have furnished to such counsel such documents as counsel may reasonably request for the purpose authorization issuance and sale of enabling them to render such opinionshares of Common Stock had been validly and sufficiently taken.
(g) Unless otherwise agreed At the Commencement Date and on each Settlement Date, the Company shall have furnished to by the Sales Manager, the Sales Manager must have received on such appropriate further information, certificates and documents as the date of this Sales Agreement a signed letter, dated such date, substantially in the form of Schedule C to this Sales Agreement from the independent registered public accounting firm designated in such Schedule. The Sales Manager also must have received as of each time referred to may reasonably request. All such opinions, certificates, letters and other documents will be in Section 4(n) a signed letter from such accountants, dated as of the date thereof, confirming on the basis of a review in accordance compliance with the procedures set forth in their earlier letter that nothing has come to their attention during the period from a date not more than five business days before the date of this Sales Agreement, specified in the letter, to a date not more than five business days before such time, that would require any change in their letter referred to in the foregoing sentence. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Sales Agreement will comply provisions hereof only if they are reasonably satisfactory in form and scope reasonably satisfactory substance to counsel for the Sales Manager, provided that any such documents, forms of which are annexed hereto, shall be deemed satisfactory to such counsel if substantially in such form.Sales
Appears in 1 contract
Conditions of the Sales Manager’s Obligations. 4.1 The obligations of the Sales Manager to sell Common Shares are the Stock as provided herein shall be subject to the accuracy on accuracy, as of the date of this Sales Agreementhereof, and as of each Settlement DateDate contemplated under this Agreement, of the representations and warranties of the Fund and the Investment Adviser in this Sales AgreementCompany herein, to the accuracy and completeness of all material statements made by the Fund and the Investment Adviser or any of their respective officers in any certificate delivered to the Sales Manager or its counsel pursuant to this Sales Agreement, to performance by the Fund and the Investment Adviser Company of their respective its obligations under this Sales Agreement hereunder and to each of the following additional conditions:
(a) The Registration Statement must contemplated by Section 3.1(a) above shall have become been declared effective. The Prospectus must have been filed in accordance with Rule 497(b) or (h) or a certificate must have been filed in accordance with Rule 497(j), as the case may be, under the Securities Act.
(b) No stop order suspending the effectiveness of the Registration Statement may be in effect shall have been issued and no proceedings proceeding for such that purpose may be pending before shall have been instituted or, to the knowledge of counsel to the Company or the Sales Manager, threatened by the Commission, and any requests request of the Commission for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) must be shall have been complied with or waived to the Sales Manager’s reasonable satisfaction of satisfaction.
(b) The Sales Manager shall not have advised the Company that the disclosures in the Registration Statement or the Prospectus are not reasonably acceptable to the Sales Manager.
(c) Since Except as contemplated in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there must not have been any material change in the Common Shares except as set forth in or contemplated by the Prospectus; (ii) there must shall not have been any material adverse change in the general affairscapital stock of the Company, prospectsor any material adverse change, managementor any development that may reasonably be expected to cause a material adverse change, in the condition (financial or other), business, financial condition net worth or results of operations of the Fund Company, or the Investment Adviser whether or not arising from transactions any adverse change in the ordinary course of business as set forth in or contemplated by the Prospectus; (iii) the Fund must not have sustained rating assigned to any material loss or interference with its business from any court or from legislative or other governmental action, order or decree, whether foreign or domestic, or from any other occurrence not described in the Registration Statement and the Prospectus; and (iv) there must not have occurred any event that makes untrue or incorrect in any material respect any statement or information contained in the Registration Statement or the Prospectus or that is not reflected in the Registration Statement or the Prospectus but should be reflected therein in order to make the statements or information therein (in the case securities of the Prospectus, in light of the circumstances in which they were made) not misleading in any material respect; if, in the judgment of the Sales Manager, any such development referred to in clause (i), (ii), (iii), or (iv) of this paragraph (c) makes it impracticable or inadvisable to consummate the sale and delivery of the Common Shares pursuant to this Sales Agreement at the then current market price of the Common SharesCompany.
(di) Unless otherwise agreed to by The Sales Manager shall have received at the date of the first sale of Stock hereunder (the “Commencement Date”) and at every other date specified in Section 3.1(n) above, opinions of Company Counsel, dated as of the Commencement Date and dated as of such other date, covering the provisions set forth Schedule A hereto.
(ii) The Sales Manager shall have received a letter from Company Counsel authorizing the Sales ManagerManager to rely on the opinion on tax matters delivered by Company Counsel as Exhibit 8.1 to the Registration Statement.
(e) At the Commencement Date and at such other dates specified in Section 3.1(o) above, the Sales Manager must shall have received as a “comfort letter” from KPMG LLP, independent public accountants for the Company, or other independent accountants then retained by the Company, dated the date of each Settlement Date delivery thereof, in form and substance satisfactory to the Sales Manager.
(f) The Sales Manager shall have received from the Company a certificate, dated such dateor certificates, signed by two of the Chief Executive Officer, Chief Financial Officer or any Vice President or a Vice-President of the Company, dated as of the Commencement Date and (unless the chief financial or accounting officer Company is not then selling Stock through the Sales Manager and has not requested the Sales Manager to sell Stock) dated as of the first business day of each calendar month thereafter (each, a “Certificate Date”), to the effect that, to the best of their knowledge based upon reasonable investigation:
(i) The representations and warranties of the Fund Company in this Agreement are true and the Investment Adviser certifying (in their capacity correct, as such officers and, with respect to clauses (ii), (iii) if made at and (vi) below, on behalf as of the Fund and Commencement Date or the Investment Adviser, Certificate Date (as the case may be) that ), and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Commencement Date and each such Certificate Date (i) as the signers have carefully examined the Registration Statement, the Prospectus and this Sales Agreement, case may be);
(ii) No stop order suspending the representations effectiveness of the Fund (with respect Registration Statement has been issued, and no proceeding for that purpose has been instituted or, to the certificates from knowledge of such Fund officersofficer after due inquiry, is threatened, by the Commission;
(iii) and the representations of the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) in this Sales Agreement are accurate on and as of Since the date of this Agreement there has occurred no event required to be set forth in an amendment or supplement to the certificateRegistration Statement or Prospectus that has not been so set forth and there has been no document required to be filed under the Exchange Act and the rules and regulations of the Commission thereunder that upon such filing would be deemed to be incorporated by reference in the Prospectus that has not been so filed; and
(iv) Since the date of this Agreement, (iii) there has not been any material adverse change in the general affairs, prospects, managementassets or properties, business, financial condition or results of operations operations, or condition (financial or otherwise) of the Fund (with respect Company, which has not been described in an amendment or supplement to the certificates from such Fund officers) Registration Statement or the Investment Adviser Prospectus (with respect to the certificates from such officers of the Investment Adviser), which change would materially and adversely affect the ability of the Fund directly or the Investment Adviser, as the case may be, to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement (with respect to the certificates from such officers of the Investment Adviser), whether or not arising from transactions in the ordinary course of business, (iv) with respect to the Fund only, no order suspending the effectiveness of the Registration Statement, prohibiting the sale of any of the Common Shares or otherwise having a material adverse effect on the Fund has been issued and no proceedings for any such purpose are pending before or, to the knowledge of such officers after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic, (v) no order having a material adverse effect on the ability of the Investment Adviser to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement, as the case may be, has been issued and no proceedings for any such purpose are pending before or, to the knowledge of the officers of the Investment Adviser after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic and (vi) each of the Fund (with respect to the certificates from such Fund officers) and the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) has performed all of its respective agreements that this Sales Agreement requires it to perform by such Settlement Date (to the extent not waived in writing by the Sales Managerincorporation).
(eg) Unless otherwise agreed At the Commencement Date and on each Settlement Date, the Company shall have furnished to by the Sales Manager, the Sales Manager must have received such appropriate further information, certificates and documents as of the date of this Sales Agreement and each time referred to in Section 4(m) the opinions dated as of the date thereof substantially in the form of Schedules A and B to this Sales Agreement (modified in the case of times referred to in Section 4(m) as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to that date) from the counsel identified in each such Schedule.
(f) Unless otherwise agreed to by the Sales Manager, the Sales Manager must have received as of the date of this Sales Agreement may reasonably request. All such opinions, certificates, letters and each time referred to other documents will be in Section 4(m) from its counsel an opinion dated as of the date thereof with respect to the Fund, the Common Shares, the Registration Statement and the Prospectus, this Sales Agreement and the form and sufficiency of all proceedings taken in connection compliance with the sale and delivery of the Common Shares. Such opinion and proceedings shall fulfill the requirements of this Section 5(f) provisions hereof only if such opinion and proceedings they are satisfactory in all respects form and substance to the Sales Manager. The Fund and the Investment Adviser must have furnished to such counsel such documents as counsel may reasonably request for the purpose of enabling them to render such opinion.
(g) Unless otherwise agreed to by the Sales Manager, Company will furnish the Sales Manager must have received on with such conformed copies of such opinions, certificates, letters and other documents, as the date of this Sales Agreement a signed letter, dated such date, substantially in the form of Schedule C to this Sales Agreement from the independent registered public accounting firm designated in such Schedule. The Sales Manager also must have received as of each time referred to in Section 4(n) a signed letter from such accountants, dated as of the date thereof, confirming on the basis of a review in accordance with the procedures set forth in their earlier letter that nothing has come to their attention during the period from a date not more than five business days before the date of this Sales Agreement, specified in the letter, to a date not more than five business days before such time, that would require any change in their letter referred to in the foregoing sentence. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Sales Agreement will comply only if they are in form and scope shall reasonably satisfactory to counsel for the Sales Manager, provided that any such documents, forms of which are annexed hereto, shall be deemed satisfactory to such counsel if substantially in such formrequest.
Appears in 1 contract
Conditions of the Sales Manager’s Obligations. 4.1 The obligations of the Sales Manager to sell Common Shares are the Stock as provided herein shall be subject to the accuracy on accuracy, as of the date of this Sales Agreementhereof, and as of each Settlement DateDate contemplated under this Agreement, of the representations and warranties of the Fund and the Investment Adviser in this Sales AgreementCompany herein, to the accuracy and completeness of all material statements made by the Fund and the Investment Adviser or any of their respective officers in any certificate delivered to the Sales Manager or its counsel pursuant to this Sales Agreement, to performance by the Fund and the Investment Adviser Company of their respective its obligations under this Sales Agreement hereunder and to each of the following additional conditions:
(a) The post-effective amendment to the Registration Statement must contemplated by Section 3.1(a) shall have become been declared effective. The Prospectus must have been filed in accordance with Rule 497(b) or (h) or a certificate must have been filed in accordance with Rule 497(j), as the case may be, under the Securities Act.
(b) No stop order suspending the effectiveness of the Registration Statement may be in effect shall have been issued and no proceedings proceeding for such that purpose may shall have been instituted and be pending before continuing or, to the knowledge of counsel to the Company or the Sales Manager, threatened by the Commission, and any requests request of the Commission for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) must be shall have been complied with with.
(b) The Sales Manager shall not have advised the Company that the Registration Statement or waived to the reasonable satisfaction Prospectus, or any amendment or supplement thereto, contains an untrue statement of fact that in the Sales Manager's reasonable opinion is material, or omits to state a fact that in the Sales Manager's reasonable opinion is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) Since Except as contemplated in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there must shall not have been any material change in the Common Shares except as set forth in or contemplated by the Prospectus; (ii) there must not have been any material adverse change in the general affairschange, prospects, management, business, financial condition or results of operations of the Fund or the Investment Adviser whether or not arising from transactions in the ordinary course of business as set forth in or contemplated by the Prospectus; (iii) the Fund must not have sustained any material loss or interference with its business from any court or from legislative or other governmental action, order or decree, whether foreign or domestic, or from any other occurrence not described in the Registration Statement and the Prospectus; and (iv) there must not have occurred any event that makes untrue or incorrect in any material respect any statement or information contained in the Registration Statement or the Prospectus or that is not reflected in the Registration Statement or the Prospectus but should be reflected therein in order to make the statements or information therein (in the case of the Prospectus, in light of the circumstances in which they were made) not misleading in any material respect; ifon a consolidated basis, in the judgment capital stock of the Sales Manager, any such development referred to in clause (i), (ii), (iii)Company, or (iv) of this paragraph (c) makes it impracticable any change, or inadvisable any development that would reasonably be expected to consummate the sale and delivery of the Common Shares pursuant to this Sales Agreement at the then current market price of the Common Sharescause a Material Adverse Effect.
(d) Unless otherwise agreed The Sales Manager shall have received at the date of the first sale (the trade date) of Stock hereunder (the "Commencement Date") and at every other date specified in Section 3.1(m) hereof, opinions of Company Counsel, dated as of the first Commencement Date and dated as of such other date, respectively, to by the effect substantially set forth in Exhibit A hereto, and in form reasonably acceptable to the Sales Manager.
(e) At the Commencement Date and at such other dates specified in Section 3.1(n) hereof, the Sales Manager shall have received a letter from KPMG, LLP, independent public accountants for the Company, or other independent accountants satisfactory to the Sales Manager, dated the date of delivery thereof, in form and substance satisfactory to the Sales Manager.
(f) The Sales Manager must shall have received as of each Settlement Date from the Company a certificate, dated such dateor certificates, signed by the Chairman of the Board, the President or a Vice-Vice President and by the chief principal financial or accounting officer of each the Company, dated as of the Fund Commencement Date and dated as of the Investment Adviser certifying first business day of each calendar month thereafter (in their capacity as such officers andeach, with respect to clauses (iia "Certificate Date"), to the effect that, to the best of their knowledge based upon reasonable investigation:
(iiii) The representations and (vi) below, on behalf warranties of the Fund Company in this Agreement are true and correct, as if made at and as of the Investment Adviser, Commencement Date or the Certificate Date (as the case may be) that (i) ), and the signers have carefully examined Company has complied with all the Registration Statement, agreements and satisfied all the Prospectus and this Sales Agreement, (ii) the representations of the Fund (with respect conditions on its part to be performed or satisfied at or prior to the certificates from Commencement Date and each such Fund officers) and the representations of the Investment Adviser Certificate Date (with respect to the certificates from such officers of the Investment Adviser) in this Sales Agreement are accurate on and as of the date of the certificate, (iii) there has not been any material adverse change in the general affairs, prospects, management, business, financial condition or results of operations of the Fund (with respect to the certificates from such Fund officers) or the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser), which change would materially and adversely affect the ability of the Fund or the Investment Adviser, as the case may be, to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement );
(with respect to the certificates from such officers of the Investment Adviser), whether or not arising from transactions in the ordinary course of business, (ivii) with respect to the Fund only, no No stop order suspending the effectiveness of the Registration Statement, prohibiting the sale of any of the Common Shares or otherwise having a material adverse effect on the Fund Statement has been issued issued, and no proceedings proceeding for any such that purpose are pending before has been instituted or, to the knowledge of such officers after reasonable investigationofficer is threatened, threatened by the Commission or any other regulatory body, whether foreign or domestic, (v) no order having a material adverse effect on the ability of the Investment Adviser to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement, as the case may be, has been issued and no proceedings for any such purpose are pending before or, to the knowledge of the officers of the Investment Adviser after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic and (vi) each of the Fund (with respect to the certificates from such Fund officers) and the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) has performed all of its respective agreements that this Sales Agreement requires it to perform by such Settlement Date (to the extent not waived in writing by the Sales Manager).Commission;
(eiii) Unless otherwise agreed to by the Sales Manager, the Sales Manager must have received as of Since the date of this Sales Agreement and each time referred there has occurred no event required to be set forth in Section 4(m) the opinions dated as of the date thereof substantially in the form of Schedules A and B to this Sales Agreement (modified in the case of times referred to in Section 4(m) as necessary to relate an amendment or supplement to the Registration Statement or Prospectus that has not been so set forth and there has been no document required to be filed under the Exchange Act and the rules and regulations of the Commission thereunder that upon such filing would be deemed to be incorporated by reference in the Prospectus as amended and supplemented to that date) from the counsel identified in each such Schedule.has not been so filed; and
(fiv) Unless otherwise agreed to by the Sales Manager, the Sales Manager must have received as of Since the date of this Sales Agreement and each time referred to Agreement, there has not been any change in Section 4(mthe assets or properties, business, results of operations, or condition (financial or otherwise) from its counsel an opinion dated as of the date thereof with respect Company, which would reasonably be expected to the Fund, the Common Shares, cause a Material Adverse Effect and which has not been described in an amendment or supplement to the Registration Statement or Prospectus (directly or by incorporation). In addition, on each Certificate Date the certificate shall also reconfirm that the shares of Stock sold during the immediately preceding month were duly authorized and validly issued.
(g) At the ProspectusCommencement Date and on each Settlement Date, this the Company shall have furnished to the Sales Agreement Manager such appropriate further information, certificates and documents as the Sales Manager may reasonably request. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are reasonably satisfactory in form and sufficiency of all proceedings taken in connection with the sale and delivery of the Common Shares. Such opinion and proceedings shall fulfill the requirements of this Section 5(f) only if such opinion and proceedings are satisfactory in all respects substance to the Sales Manager. The Fund and the Investment Adviser must have furnished to such counsel such documents as counsel may reasonably request for the purpose of enabling them to render such opinion.
(g) Unless otherwise agreed to by the Sales Manager, Company will furnish the Sales Manager must have received on with such conformed copies of such opinions, certificates, letters and other documents as the date of this Sales Agreement a signed letter, dated such date, substantially in the form of Schedule C to this Sales Agreement from the independent registered public accounting firm designated in such Schedule. The Sales Manager also must have received as of each time referred to in Section 4(n) a signed letter from such accountants, dated as of the date thereof, confirming on the basis of a review in accordance with the procedures set forth in their earlier letter that nothing has come to their attention during the period from a date not more than five business days before the date of this Sales Agreement, specified in the letter, to a date not more than five business days before such time, that would require any change in their letter referred to in the foregoing sentence. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Sales Agreement will comply only if they are in form and scope shall reasonably satisfactory to counsel for the Sales Manager, provided that any such documents, forms of which are annexed hereto, shall be deemed satisfactory to such counsel if substantially in such formrequest.
Appears in 1 contract
Conditions of the Sales Manager’s Obligations. 4.1 The obligations of the Sales Manager to sell Common Shares are the Stock as provided herein shall be subject to the accuracy on accuracy, as of the date of this Sales Agreementhereof, and as of each Settlement DateDate contemplated under this Agreement, of the representations and warranties of the Fund and the Investment Adviser in this Sales AgreementCompany herein, to the accuracy and completeness of all material statements made by the Fund and the Investment Adviser or any of their respective officers in any certificate delivered to the Sales Manager or its counsel pursuant to this Sales Agreement, to performance by the Fund and the Investment Adviser Company of their respective its obligations under this Sales Agreement hereunder and to each of the following additional conditions:
(a) The Registration Statement must contemplated by Section 3.1(a) above shall have become been declared effective. The Prospectus must have been filed in accordance with Rule 497(b) or (h) or a certificate must have been filed in accordance with Rule 497(j), as the case may be, under the Securities Act.
(b) No stop order suspending the effectiveness of the Registration Statement may be in effect shall have been issued and no proceedings proceeding for such that purpose may be pending before shall have been instituted or, to the knowledge of counsel to the Company or the Sales Manager, threatened by the Commission, and any requests request of the Commission for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) must be shall have been complied with or waived to the Sales Manager’s reasonable satisfaction of satisfaction.
(b) The Sales Manager shall not have advised the Company that the disclosures in the Registration Statement or the Prospectus are not reasonably acceptable to the Sales Manager.
(c) Since Except as contemplated in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there must not have been any material change in the Common Shares except as set forth in or contemplated by the Prospectus; (ii) there must shall not have been any material adverse change in the general affairscapital stock of the Company, prospectsor any material adverse change, managementor any development that may reasonably be expected to cause a material adverse change, in the financial condition, business, financial condition net worth or results of operations of the Fund Company, or the Investment Adviser whether or not arising from transactions any adverse change in the ordinary course of business as set forth in or contemplated by the Prospectus; (iii) the Fund must not have sustained rating assigned to any material loss or interference with its business from any court or from legislative or other governmental action, order or decree, whether foreign or domestic, or from any other occurrence not described in the Registration Statement and the Prospectus; and (iv) there must not have occurred any event that makes untrue or incorrect in any material respect any statement or information contained in the Registration Statement or the Prospectus or that is not reflected in the Registration Statement or the Prospectus but should be reflected therein in order to make the statements or information therein (in the case securities of the Prospectus, in light Company.
(1) The Sales Manager shall have received at the date of the circumstances first sale of Stock hereunder (the “Commencement Date”) and at every other date specified in which they were madeSection 3.1(n) not misleading in any material respect; ifabove, opinions of Company Counsel, dated as of the Commencement Date and dated as of such other date, in the judgment form of the Sales Manager, any such development referred to in clause (i), (ii), (iii), or (iv) of this paragraph (c) makes it impracticable or inadvisable to consummate the sale and delivery of the Common Shares pursuant to this Sales Agreement at the then current market price of the Common SharesSchedule A hereto.
(d2) Unless otherwise agreed to by The Sales Manager shall have received a letter from Company Counsel authorizing the Sales ManagerManager to rely on the opinion on tax matters delivered by Company Counsel as Exhibit 8.1 to the Registration Statement.
(e) At the Commencement Date and at such other dates specified in Section 3.1(o) above, the Sales Manager must shall have received as a “comfort letter” from Ernst & Young, LLP, independent public accountants for the Company, or other independent accountants then retained by the Company, dated the date of each Settlement Date delivery thereof, in form and substance satisfactory to the Sales Manager.
(f) The Sales Manager shall have received from the Company a certificate, dated such dateor certificates, signed by the Chief Financial Officer and President or Chief Executive Officer or any Vice President of the President or a Vice-President Company, dated as of the Commencement Date and (unless the chief financial or accounting officer Company is not then selling Stock through the Sales Manager and has not requested the Sales Manager to sell Stock) dated as of the first business day of each calendar month thereafter (each, a “Certificate Date”), to the effect that, to the best of their knowledge based upon reasonable investigation:
(i) The representations and warranties of the Fund Company in this Agreement are true and the Investment Adviser certifying (in their capacity correct, as such officers and, with respect to clauses (ii), (iii) if made at and (vi) below, on behalf as of the Fund and Commencement Date or the Investment Adviser, Certificate Date (as the case may be) that ), and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Commencement Date and each such Certificate Date (i) as the signers have carefully examined the Registration Statement, the Prospectus and this Sales Agreement, case may be);
(ii) No stop order suspending the representations effectiveness of the Fund (with respect Registration Statement has been issued, and no proceeding for that purpose has been instituted or, to the certificates from knowledge of such Fund officersofficer after due inquiry, is threatened, by the Commission;
(iii) and the representations of the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) in this Sales Agreement are accurate on and as of Since the date of this Agreement there has occurred no event required to be set forth in an amendment or supplement to the certificateRegistration Statement or Prospectus that has not been so set forth and there has been no document required to be filed under the Exchange Act and the rules and regulations of the Commission thereunder that upon such filing would be deemed to be incorporated by reference in the Prospectus that has not been so filed; and
(iv) Since the date of this Agreement, (iii) there has not been any material adverse change in the general affairs, prospects, managementassets or properties, business, results of operations, or financial condition or results of operations of the Fund (with respect Company, which has not been described in an amendment or supplement to the certificates from such Fund officers) Registration Statement or the Investment Adviser Prospectus (with respect to the certificates from such officers of the Investment Adviser), which change would materially and adversely affect the ability of the Fund directly or the Investment Adviser, as the case may be, to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement (with respect to the certificates from such officers of the Investment Adviser), whether or not arising from transactions in the ordinary course of business, (iv) with respect to the Fund only, no order suspending the effectiveness of the Registration Statement, prohibiting the sale of any of the Common Shares or otherwise having a material adverse effect on the Fund has been issued and no proceedings for any such purpose are pending before or, to the knowledge of such officers after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic, (v) no order having a material adverse effect on the ability of the Investment Adviser to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement, as the case may be, has been issued and no proceedings for any such purpose are pending before or, to the knowledge of the officers of the Investment Adviser after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic and (vi) each of the Fund (with respect to the certificates from such Fund officers) and the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) has performed all of its respective agreements that this Sales Agreement requires it to perform by such Settlement Date (to the extent not waived in writing by the Sales Managerincorporation).
(eg) Unless otherwise agreed to The Sales Manager’s participation in the distribution of Stock contemplated by this Agreement shall have been reviewed and found acceptable by the Sales ManagerNASD pursuant to NASD Rule 2710 (Corporate Financing Rule). All such opinions, certificates, letters and other documents will be in compliance with the Sales Manager must have received as of the date of this Sales Agreement and each time referred to provisions hereof only if they are reasonably satisfactory in Section 4(m) the opinions dated as of the date thereof substantially in the form of Schedules A and B to this Sales Agreement (modified in the case of times referred to in Section 4(m) as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to that date) from the counsel identified in each such Schedule.
(f) Unless otherwise agreed to by the Sales Manager, the Sales Manager must have received as of the date of this Sales Agreement and each time referred to in Section 4(m) from its counsel an opinion dated as of the date thereof with respect to the Fund, the Common Shares, the Registration Statement and the Prospectus, this Sales Agreement and the form and sufficiency of all proceedings taken in connection with the sale and delivery of the Common Shares. Such opinion and proceedings shall fulfill the requirements of this Section 5(f) only if such opinion and proceedings are satisfactory in all respects substance to the Sales Manager. The Fund and the Investment Adviser must have furnished to such counsel such documents as counsel may reasonably request for the purpose of enabling them to render such opinion.
(g) Unless otherwise agreed to by the Sales Manager, Company will furnish the Sales Manager must have received on with such conformed copies of such opinions, certificates, letters and other documents, as the date of this Sales Agreement a signed letter, dated such date, substantially in the form of Schedule C to this Sales Agreement from the independent registered public accounting firm designated in such Schedule. The Sales Manager also must have received as of each time referred to in Section 4(n) a signed letter from such accountants, dated as of the date thereof, confirming on the basis of a review in accordance with the procedures set forth in their earlier letter that nothing has come to their attention during the period from a date not more than five business days before the date of this Sales Agreement, specified in the letter, to a date not more than five business days before such time, that would require any change in their letter referred to in the foregoing sentence. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Sales Agreement will comply only if they are in form and scope shall reasonably satisfactory to counsel for the Sales Manager, provided that any such documents, forms of which are annexed hereto, shall be deemed satisfactory to such counsel if substantially in such formrequest.
Appears in 1 contract
Conditions of the Sales Manager’s Obligations. 4.1 The obligations of the Sales Manager to sell Common Shares are the Company Equity Securities as provided herein shall be subject to the accuracy on accuracy, as of the date of this Sales Agreementhereof, and as of each Settlement DateDate contemplated under this Agreement, of the representations and warranties of the Fund and the Investment Adviser in this Sales AgreementCompany herein, to the accuracy and completeness of all material statements made by the Fund and the Investment Adviser or any of their respective officers in any certificate delivered to the Sales Manager or its counsel pursuant to this Sales Agreement, to performance by the Fund and the Investment Adviser Company of their respective its obligations under this Sales Agreement hereunder and to each of the following additional conditions:
(a) The Registration Statement must have become has been declared effective. The Prospectus must have been filed in accordance with Rule 497(b) or (h) or a certificate must have been filed in accordance with Rule 497(j), as the case may be, under the Securities Act.
(b) No stop order suspending the effectiveness of the Registration Statement may be in effect shall have been issued and no proceedings proceeding for such that purpose may be pending before shall have been instituted or, to the knowledge of counsel to the Company or the Sales Manager, threatened by the Commission, and any requests request of the Commission for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) must be shall have been complied with or waived to the Sales Manager’s reasonable satisfaction of satisfaction. The Company Equity Securities shall have been listed for trading on the Trading Market.
(b) The Sales Manager shall not have advised the Company that the disclosures in the Registration Statement or the Prospectus, or any amendment or supplement thereto, are not reasonably acceptable to the Sales Manager.
(c) Since Except as contemplated in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there must not have been any material change in the Common Shares except as set forth in or contemplated by the Prospectus; (ii) there must shall not have been any material adverse change in the general affairscapital stock of the Company, prospectsor any material adverse change, managementor any development that may reasonably be expected to cause a material adverse change, in the condition (financial or other), business, financial condition net worth or results of operations of the Fund Company, or the Investment Adviser whether or not arising from transactions any adverse change in the ordinary course of business as set forth in or contemplated by the Prospectus; (iii) the Fund must not have sustained rating assigned to any material loss or interference with its business from any court or from legislative or other governmental action, order or decree, whether foreign or domestic, or from any other occurrence not described in the Registration Statement and the Prospectus; and (iv) there must not have occurred any event that makes untrue or incorrect in any material respect any statement or information contained in the Registration Statement or the Prospectus or that is not reflected in the Registration Statement or the Prospectus but should be reflected therein in order to make the statements or information therein (in the case securities of the Prospectus, in light of the circumstances in which they were made) not misleading in any material respect; if, in the judgment of the Sales Manager, any such development referred to in clause (i), (ii), (iii), or (iv) of this paragraph (c) makes it impracticable or inadvisable to consummate the sale and delivery of the Common Shares pursuant to this Sales Agreement at the then current market price of the Common SharesCompany.
(d) Unless otherwise agreed to by the Sales Manager, the Sales Manager must have received as of each Settlement Date a certificate, dated such date, of the President or a Vice-President and the chief financial or accounting officer of each of the Fund and the Investment Adviser certifying (in their capacity as such officers and, with respect to clauses (ii), (iii) and (vi) below, on behalf of the Fund and the Investment Adviser, as the case may be) that (i) the signers The Sales Manager shall have carefully examined the Registration Statement, the Prospectus and this Sales Agreement, (ii) the representations of the Fund (with respect to the certificates from such Fund officers) and the representations of the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) in this Sales Agreement are accurate on and as of received at the date of the certificate, (iii) there has not been any material adverse change in the general affairs, prospects, management, business, financial condition or results of operations of the Fund (with respect to the certificates from such Fund officers) or the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser), which change would materially and adversely affect the ability of the Fund or the Investment Adviser, as the case may be, to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement (with respect to the certificates from such officers of the Investment Adviser), whether or not arising from transactions in the ordinary course of business, (iv) with respect to the Fund only, no order suspending the effectiveness of the Registration Statement, prohibiting the first sale of any of Company Equity Securities hereunder (the Common Shares or otherwise having a material adverse effect on the Fund has been issued and no proceedings for any such purpose are pending before or, to the knowledge of such officers after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic, (v) no order having a material adverse effect on the ability of the Investment Adviser to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement, as the case may be, has been issued and no proceedings for any such purpose are pending before or, to the knowledge of the officers of the Investment Adviser after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic and (vi) each of the Fund (with respect to the certificates from such Fund officers“Commencement Date”) and the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) has performed all of its respective agreements that this Sales Agreement requires it to perform by such Settlement Date (to the extent not waived in writing by the Sales Manager).
(e) Unless otherwise agreed to by the Sales Manager, the Sales Manager must have received as of the at every other date of this Sales Agreement and each time referred to specified in Section 4(m3.1(n) the hereof, opinions dated as of the date thereof substantially in the form of Schedules A and B to this Sales Agreement (modified in the case of times referred to in Section 4(m) as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to that date) from the counsel identified in each such Schedule.
(f) Unless otherwise agreed to by the Sales Manager, the Sales Manager must have received as of the date of this Sales Agreement and each time referred to in Section 4(m) from its counsel an opinion dated as of the date thereof with respect to the Fund, the Common Shares, the Registration Statement and the Prospectus, this Sales Agreement and the form and sufficiency of all proceedings taken in connection with the sale and delivery of the Common Shares. Such opinion and proceedings shall fulfill the requirements of this Section 5(f) only if such opinion and proceedings are satisfactory in all respects to the Sales Manager. The Fund and the Investment Adviser must have furnished to such counsel such documents as counsel may reasonably request for the purpose of enabling them to render such opinion.
(g) Unless otherwise agreed to by the Sales Manager, the Sales Manager must have received on the date of this Sales Agreement a signed letter, dated such date, substantially in the form of Schedule C to this Sales Agreement from the independent registered public accounting firm designated in such Schedule. The Sales Manager also must have received as of each time referred to in Section 4(n) a signed letter from such accountantsCompany Counsel, dated as of the date thereofCommencement Date and dated as of such other date, confirming on the basis of in a review in accordance with the procedures set forth in their earlier letter that nothing has come form reasonably acceptable to their attention during the period from a date not more than five business days before the date of this Sales Agreement, specified in the letter, to a date not more than five business days before such time, that would require any change in their letter referred to in the foregoing sentence. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Sales Agreement will comply only if they are in form and scope reasonably satisfactory to counsel for the Sales Manager, provided that any such documents, forms of which are annexed hereto, .
(ii) The Sales Manager shall be deemed satisfactory have received a letter from Company Counsel authorizing the Sales Manager to such counsel if substantially in such formrely on the opinion on tax matters delivered by Company Counsel as Exhibit 8.1 to the Registration Statement.
Appears in 1 contract
Conditions of the Sales Manager’s Obligations. 4.1 The obligations of the Sales Manager to sell Common Shares are the Stock as provided herein shall be subject to the accuracy on accuracy, as of the date of this Sales Agreementhereof, and as of each Settlement DateDate contemplated under this Agreement, of the representations and warranties of the Fund and the Investment Adviser in this Sales AgreementCompany herein, to the accuracy and completeness of all material statements made by the Fund and the Investment Adviser or any of their respective officers in any certificate delivered to the Sales Manager or its counsel pursuant to this Sales Agreement, to performance by the Fund and the Investment Adviser Company of their respective its obligations under this Sales Agreement hereunder and to each of the following additional conditions:
(a) The post-effective amendment to the Registration Statement must contemplated by Section 3.1(a) above shall have become been declared effective. The Prospectus must have been filed in accordance with Rule 497(b) or (h) or a certificate must have been filed in accordance with Rule 497(j), as the case may be, under the Securities Act.
(b) No stop order suspending the effectiveness of the Registration Statement may be in effect shall have been issued and no proceedings proceeding for such that purpose may be pending before shall have been instituted or, to the knowledge of counsel to the Company or the Sales Manager, threatened by the Commission, and any requests request of the Commission for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) must be shall have been complied with or waived to the Sales Manager’s reasonable satisfaction of satisfaction.
(b) The Sales Manager shall not have advised the Company that the disclosures in the Registration Statement or the Prospectus are not reasonably acceptable to the Sales Manager.
(c) Since Except as contemplated in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there must not have been any material change in the Common Shares except as set forth in or contemplated by the Prospectus; (ii) there must shall not have been any material adverse change in the general affairscapital stock of the Company, prospectsor any material adverse change, managementor any development that may reasonably be expected to cause a material adverse change, in the condition (financial or other), business, financial condition net worth or results of operations of the Fund Company, or the Investment Adviser whether or not arising from transactions any adverse change in the ordinary course of business as set forth in or contemplated by the Prospectus; (iii) the Fund must not have sustained rating assigned to any material loss or interference with its business from any court or from legislative or other governmental action, order or decree, whether foreign or domestic, or from any other occurrence not described in the Registration Statement and the Prospectus; and (iv) there must not have occurred any event that makes untrue or incorrect in any material respect any statement or information contained in the Registration Statement or the Prospectus or that is not reflected in the Registration Statement or the Prospectus but should be reflected therein in order to make the statements or information therein (in the case securities of the Prospectus, in light Company.
(1) The Sales Manager shall have received at the date of the circumstances first sale of Stock hereunder (the “Commencement Date”) and at every other date specified in which they were madeSection 3.1(n) not misleading in any material respect; ifabove, opinions of Company Counsel, dated as of the Commencement Date and dated as of such other date, in the judgment form of the Sales Manager, any such development referred to in clause (i), (ii), (iii), or (iv) of this paragraph (c) makes it impracticable or inadvisable to consummate the sale and delivery of the Common Shares pursuant to this Sales Agreement at the then current market price of the Common SharesSchedule A hereto.
(d2) Unless otherwise agreed to by The Sales Manager shall have received a letter from Company Counsel authorizing the Sales ManagerManager to rely on the opinion on tax matters delivered by Company Counsel as Exhibit 8.1 to the Registration Statement.
(e) At the Commencement Date and at such other dates specified in Section 3.1(o) above, the Sales Manager must shall have received as a “comfort letter” from Ernst & Young LLP, independent public accountants for the Company, or other independent accountants then retained by the Company, dated the date of each Settlement Date delivery thereof, in form and substance satisfactory to the Sales Manager.
(f) The Sales Manager shall have received from the Company a certificate, or certificates, signed by the Chief Financial Officer and President or Chief Executive Officer or any Vice President the Company, dated such date, as of the President or a Vice-President Commencement Date and (unless the chief financial or accounting officer Company is not then selling Stock through the Sales Manager and has not requested the Sales Manager to sell Stock) dated as of the first business day of each calendar month thereafter (each, a “Certificate Date”), to the effect that, to the best of their knowledge based upon reasonable investigation:
(i) The representations and warranties of the Fund Company in this Agreement are true and the Investment Adviser certifying (in their capacity correct, as such officers and, with respect to clauses (ii), (iii) if made at and (vi) below, on behalf as of the Fund and Commencement Date or the Investment Adviser, Certificate Date (as the case may be) that ), and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Commencement Date and each such Certificate Date (i) as the signers have carefully examined the Registration Statement, the Prospectus and this Sales Agreement, case may be);
(ii) No stop order suspending the representations effectiveness of the Fund (with respect Registration Statement has been issued, and no proceeding for that purpose has been instituted or, to the certificates from knowledge of such Fund officersofficer after due inquiry, is threatened, by the Commission;
(iii) and the representations of the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) in this Sales Agreement are accurate on and as of Since the date of this Agreement there has occurred no event required to be set forth in an amendment or supplement to the certificateRegistration Statement or Prospectus that has not been so set forth and there has been no document required to be filed under the Exchange Act and the rules and regulations of the Commission thereunder that upon such filing would be deemed to be incorporated by reference in the Prospectus that has not been so filed; and
(iv) Since the date of this Agreement, (iii) there has not been any material adverse change in the general affairs, prospects, managementassets or properties, business, financial condition or results of operations operations, or condition (financial or otherwise) of the Fund (with respect Company, which has not been described in an amendment or supplement to the certificates from such Fund officers) Registration Statement or the Investment Adviser Prospectus (with respect to the certificates from such officers of the Investment Adviser), which change would materially and adversely affect the ability of the Fund directly or the Investment Adviser, as the case may be, to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement (with respect to the certificates from such officers of the Investment Adviser), whether or not arising from transactions in the ordinary course of business, (iv) with respect to the Fund only, no order suspending the effectiveness of the Registration Statement, prohibiting the sale of any of the Common Shares or otherwise having a material adverse effect on the Fund has been issued and no proceedings for any such purpose are pending before or, to the knowledge of such officers after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic, (v) no order having a material adverse effect on the ability of the Investment Adviser to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement, as the case may be, has been issued and no proceedings for any such purpose are pending before or, to the knowledge of the officers of the Investment Adviser after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic and (vi) each of the Fund (with respect to the certificates from such Fund officers) and the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) has performed all of its respective agreements that this Sales Agreement requires it to perform by such Settlement Date (to the extent not waived in writing by the Sales Managerincorporation).
(eg) Unless otherwise agreed At the Commencement Date and on each Settlement Date, the Company shall have furnished to by the Sales Manager, the Sales Manager must have received such appropriate further information, certificates and documents as of the date of this Sales Agreement and each time referred to in Section 4(m) the opinions dated as of the date thereof substantially in the form of Schedules A and B to this Sales Agreement (modified in the case of times referred to in Section 4(m) as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to that date) from the counsel identified in each such Schedule.
(f) Unless otherwise agreed to by the Sales Manager, the Sales Manager must have received as of the date of this Sales Agreement may reasonably request. All such opinions, certificates, letters and each time referred to other documents will be in Section 4(m) from its counsel an opinion dated as of the date thereof with respect to the Fund, the Common Shares, the Registration Statement and the Prospectus, this Sales Agreement and the form and sufficiency of all proceedings taken in connection compliance with the sale and delivery of the Common Shares. Such opinion and proceedings shall fulfill the requirements of this Section 5(f) provisions hereof only if such opinion and proceedings they are satisfactory in all respects form and substance to the Sales Manager. The Fund and the Investment Adviser must have furnished to such counsel such documents as counsel may reasonably request for the purpose of enabling them to render such opinion.
(g) Unless otherwise agreed to by the Sales Manager, Company will furnish the Sales Manager must have received on with such conformed copies of such opinions, certificates, letters and other documents as the date of this Sales Agreement a signed letter, dated such date, substantially in the form of Schedule C to this Sales Agreement from the independent registered public accounting firm designated in such Schedule. The Sales Manager also must have received as of each time referred to in Section 4(n) a signed letter from such accountants, dated as of the date thereof, confirming on the basis of a review in accordance with the procedures set forth in their earlier letter that nothing has come to their attention during the period from a date not more than five business days before the date of this Sales Agreement, specified in the letter, to a date not more than five business days before such time, that would require any change in their letter referred to in the foregoing sentence. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Sales Agreement will comply only if they are in form and scope shall reasonably satisfactory to counsel for the Sales Manager, provided that any such documents, forms of which are annexed hereto, shall be deemed satisfactory to such counsel if substantially in such formrequest.
Appears in 1 contract
Conditions of the Sales Manager’s Obligations. 4.1 The obligations of the Sales Manager to sell Common Shares are the Stock as provided herein shall be subject to the accuracy on accuracy, as of the date of this Sales Agreementhereof, and as of each Settlement DateDate contemplated under this Agreement, of the representations and warranties of the Fund and the Investment Adviser in this Sales AgreementCompany herein, to the accuracy and completeness of all material statements made by the Fund and the Investment Adviser or any of their respective officers in any certificate delivered to the Sales Manager or its counsel pursuant to this Sales Agreement, to performance by the Fund and the Investment Adviser Company of their respective its obligations under this Sales Agreement hereunder and to each of the following additional conditions:
(a) The Registration Statement must have become contemplated by Section 3.1(a) has been declared effective. The Prospectus must have been filed in accordance with Rule 497(b) or (h) or a certificate must have been filed in accordance with Rule 497(j), as the case may be, under the Securities Act.
(b) No stop order suspending the effectiveness of the Registration Statement may be in effect shall have been issued and no proceedings proceeding for such that purpose may be pending before shall have been instituted or, to the knowledge of counsel to the Company or the Sales Manager, threatened by the Commission, and any requests request of the Commission for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) must be shall have been complied with or waived to the reasonable satisfaction of the Sales Manager's satisfaction.
(b) The Sales Manager shall not have advised the Company that the Registration Statement or the Prospectus, or any amendment or supplement thereto, is not acceptable to it in its good faith opinion.
(c) Since Except as contemplated in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there must shall not have been any material change change, on a consolidated basis, in the Common Shares except as set forth in capital stock of the Company, or contemplated by the Prospectus; (ii) there must not have been any material adverse change change, or any development that may reasonably be expected to cause a material adverse change, in the general affairscondition (financial or other), business, prospects, management, business, financial condition net worth or results of operations of the Fund Company, or the Investment Adviser whether or not arising from transactions any change in the ordinary course rating assigned to any securities of the Company.
(d) The Sales Manager shall have received at the date of the first sale of Stock hereunder (the "Commencement Date") and at every other date specified in Section 3.1(n) hereof, opinions of Company Counsel, dated as of the Commencement Date and dated as of such other date, respectively, to the effect that:
(i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Nevada; the Company is duly qualified and in good standing as a foreign corporation in each jurisdiction in which the character or location of its assets or properties (owned, leased or licensed) or by the nature of its business makes such qualification necessary (including every jurisdiction in which it owns or leases property), except for such jurisdictions where the failure to so qualify would not have a Material Adverse Effect; to the best of such counsel's knowledge, the Company has no subsidiary or subsidiaries (other as disclosed on Schedule 1.1(f) hereto) and does not control, directly or indirectly, any corporation, partnership, joint venture, association or other business organization; and the Company has all requisite corporate power and authority to own, lease, license and operate its assets and properties and conduct its business as set forth in or contemplated by the Prospectus; (iii) the Fund must not have sustained any material loss or interference with its business from any court or from legislative or other governmental action, order or decree, whether foreign or domestic, or from any other occurrence not now being conducted and as described in the Registration Statement and the ProspectusProspectus or any document incorporated by reference therein.
(ii) The certificates evidencing the Stock are in due and proper legal form and have been duly authorized for issuance by the Company; all of the outstanding shares of capital stock of the Company have been duly authorized and validly issued; and all of the outstanding shares of capital stock of the Company are fully paid and nonassessable and none of them was issued in violation of any preemptive or other similar right. The Stock, when issued and sold pursuant to this Agreement, will be duly and validly issued, fully paid and nonassessable and none of them will have been issued in violation of any preemptive or other similar right. The Stock is subject of an effective registration statement permitting their sale in the manner contemplated by this Agreement. Except as disclosed in the Registration Statement and the Prospectus, there is no outstanding option, warrant or other right calling for the issuance of, and, to the knowledge of such counsel, there is no commitment, plan or arrangement to issue, any share of capital stock, of the Company or any security convertible into or exercisable or exchangeable for, capital stock of the Company. The Stock conforms in all material respects to all statements relating thereto contained in the Registration Statement and the Prospectus.
(iii) The information set forth under the caption "Description of Capital Stock" in the Prospectus, to the extent that it constitutes matters of law, summaries of legal matters, documents, or legal conclusions, has been reviewed by such counsel and is correct in all material respects and presents the information called for by the Act and the Rules and Regulations.
(iv) there must not The descriptions contained or incorporated by reference in the Registration Statement and the Prospectus of statutes, legal and governmental proceedings, contracts and other documents are accurate, and insofar as such statements constitute a summary of documents referred to therein, matters of law or legal conclusions, are fair summaries of the material provisions thereof and accurately present the information required with respect to such documents and matters. All statutes, legal or governmental proceedings, and all agreements and other documents required to be described in the Registration Statement (or incorporated by reference therein) have occurred been so described. All agreements and other documents known to such counsel to be required to be filed as exhibits to the Registration Statement have been so filed or incorporated by reference therein.
(v) All necessary corporate action has been duly and validly taken by the Company to authorize the execution, delivery and performance of this Agreement and the issuance and sale of the Stock by the Company. This Agreement has been duly and validly executed and delivered by the Company and constitutes the legal, valid and binding obligation of the Company, enforceable in accordance with its terms.
(vi) No filing, consent, approval, authorization, order, license, certificate, permit, registration, designation or filing with any court or governmental agency or body is required for the valid authorization, issue, delivery and sale of the Stock or the consummation by the Company of the transactions contemplated by this Agreement, except the registration under the Act of the Stock, and such consents, approvals, authorizations, registrations or qualifications as may be required under state securities or Blue Sky laws in connection with the sale of the Stock by the Sales Manager.
(vii) Neither the execution, delivery and performance of this Agreement by the Company nor the consummation of any of the transactions contemplated hereby (including, without limitation, the issuance and sale by the Company of the Stock) will give rise to a right to terminate or accelerate the due date of any payment due under, or conflict with or result in the breach of any term or provision of, or constitute a default (or any event which with notice or lapse of time, or both, would constitute a default) under, or require consent or waiver under, or result in the execution or imposition of any lien, charge or encumbrance upon any properties or assets of the Company pursuant to the terms of, any indenture, mortgage, deed of trust, note, franchise, license, permit or other agreement or instrument known to such counsel and to which the Company is a party or by which it or any of its properties or businesses are bound, or any judgment, decree, order, statute, rule or regulation or violate any provision of the charter or by-laws of the Company.
(viii) To the best of such counsel's knowledge, no default exists, and no event has occurred which with notice or lapse of time, or both, would constitute a default, in the due performance and observance by the Company of any term, covenant or condition of any agreement, instrument or other document to which the Company is a party or by which its assets or properties or businesses are bound or affected.
(ix) To the best of such counsel's knowledge, the Company is not in violation of any term or provision of its charter or by-laws and the Company is not in violation of any term or provision of any franchise, license, permit, judgment, decree, order, statute, rule or regulation applicable to it.
(x) To the best of such counsel's knowledge, there is no litigation or governmental or other proceeding or investigation before any court or before or by any public body or board pending or threatened against, or involving the assets, properties or businesses of, the Company which is reasonably likely to have a Material Adverse Effect.
(xi) The Registration Statement, when it became effective, the Prospectus, each of the documents incorporated by reference in the Registration Statement and the Prospectus and each amendment or supplement thereto, on the date of filing thereof with the Commission (and at each Settlement Date on or prior to the date of the opinion) (except for the financial statements and notes and schedules and other financial and statistical information included therein, as to which such counsel expresses no opinion) complied as to form in all material respects with the requirements of the Act and the Rules and Regulations and the Exchange Act and the rules and regulations promulgated thereunder, as the case may be.
(xii) The Registration Statement has become effective under the Act; if applicable, the filing of the Prospectus supplements have been made in the manner and within the time period required by the Rules and Regulations; and, to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceedings for that makes purpose have been instituted or are threatened or pending. The Stock has been approved for quotation on the Trading Market.
(xiii) The Company is not an "investment company" within the meaning of the Investment Company Act of 1940, as amended.
(xiv) To the best of such counsel's knowledge, the conditions for use of a Registration Statement on Form S-3 set forth in the General Instructions to Form S-3 have been satisfied with respect to the Company and the transactions contemplated by this Agreement and the Registration Statement. To the extent deemed advisable by such counsel, they may rely as to matters of fact on certificates of responsible officers of the Company and public officials. Copies of such certificates shall be furnished to the Sales Manager and its counsel. In addition, such counsel shall state that such counsel has participated in conferences with officers and other representatives of the Company and representatives of the independent certified public accountants of the Company, at which conferences the contents of the Registration Statement and the Prospectus and related matters were discussed and, although such counsel is not passing upon and does not assume any responsibility for any accuracy, completeness or fairness of the statements contained or incorporated by reference in the Registration Statement and the Prospectus (except as specified in the foregoing opinion), on the basis of the foregoing no facts have come to the attention of such counsel which have caused such counsel to believe that the Registration Statement at the time it (including each post-effective amendment thereto) became effective, contained any untrue statement of a material fact or incorrect omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus and any amendments or supplements thereto, on the date of filing thereof with the Commission and at the Commencement Date and at each Settlement Date on or prior to the date of the opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (it being understood that such counsel need not express any material belief with respect any statement to matters of title to properties owned by the Company or as to the financial statements and schedules and other financial information contained included or incorporated by reference in the Registration Statement or the Prospectus Prospectus).
(e) At the Commencement Date and at such other dates specified in Section 3.1(o) hereof, the Sales Manager shall have received a letter from Deloitte & Touche LLP, independent public accountants for the Company, or that is not reflected in the Registration Statement or the Prospectus but should be reflected therein in order other independent accountants satisfactory to make the statements or information therein (in the case of the Prospectus, in light of the circumstances in which they were made) not misleading in any material respect; if, in the judgment of the Sales Manager, any such development referred dated the date of delivery thereof, in form and substance satisfactory to in clause (i), (ii), (iii), or (iv) of this paragraph (c) makes it impracticable or inadvisable to consummate the sale and delivery of the Common Shares pursuant to this Sales Agreement at the then current market price of the Common SharesManager.
(df) Unless otherwise agreed to by the Sales Manager, the The Sales Manager must shall have received as of each Settlement Date from the Company a certificate, dated such dateor certificates, signed by the Chairman of the Board, the President or a Vice-Vice President and by the chief principal financial or accounting officer of each the Company, dated as of the Fund Commencement Date and dated as of the Investment Adviser certifying first business day of each calendar month thereafter (in their capacity as such officers andeach, with respect to clauses (iia "Certificate Date"), to the effect that, to the best of their knowledge based upon reasonable investigation:
(iiii) The representations and (vi) below, on behalf warranties of the Fund Company in this Agreement are true and correct, as if made at and as of the Investment Adviser, Commencement Date or the Certificate Date (as the case may be) that ), and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Commencement Date and each such Certificate Date (i) as the signers have carefully examined the Registration Statement, the Prospectus and this Sales Agreement, case may be);
(ii) No stop order suspending the representations effectiveness of the Fund (with respect Registration Statement has been issued, and no proceeding for that purpose has been instituted or, to the certificates from knowledge of such Fund officersofficer after due inquiry, is threatened, by the Commission;
(iii) and the representations of the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) in this Sales Agreement are accurate on and as of Since the date of this Agreement there has occurred no event required to be set forth in an amendment or supplement to the certificateRegistration Statement or Prospectus that has not been so set forth and there has been no document required to be filed under the Exchange Act and the rules and regulations of the Commission thereunder that upon such filing would be deemed to be incorporated by reference in the Prospectus that has not been so filed; and
(iv) Since the date of this Agreement, (iii) there has not been any material adverse change in the general affairs, prospects, managementassets or properties, business, financial condition or results of operations operations, prospects or condition (financial or otherwise) of the Fund (with respect to the certificates from such Fund officers) or the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser)Company, which change would materially and adversely affect the ability of the Fund has not been described in an amendment or the Investment Adviser, as the case may be, to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement (with respect to the certificates from such officers of the Investment Adviser), whether or not arising from transactions in the ordinary course of business, (iv) with respect to the Fund only, no order suspending the effectiveness of the Registration Statement, prohibiting the sale of any of the Common Shares or otherwise having a material adverse effect on the Fund has been issued and no proceedings for any such purpose are pending before or, to the knowledge of such officers after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic, (v) no order having a material adverse effect on the ability of the Investment Adviser to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement, as the case may be, has been issued and no proceedings for any such purpose are pending before or, to the knowledge of the officers of the Investment Adviser after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic and (vi) each of the Fund (with respect to the certificates from such Fund officers) and the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) has performed all of its respective agreements that this Sales Agreement requires it to perform by such Settlement Date (to the extent not waived in writing by the Sales Manager).
(e) Unless otherwise agreed to by the Sales Manager, the Sales Manager must have received as of the date of this Sales Agreement and each time referred to in Section 4(m) the opinions dated as of the date thereof substantially in the form of Schedules A and B to this Sales Agreement (modified in the case of times referred to in Section 4(m) as necessary to relate supplement to the Registration Statement or Prospectus (directly or by incorporation). In addition, on each Certificate Date the certificate shall also reconfirm that the shares of Stock sold during the immediately preceding month were duly and validly authorized by the Prospectus as amended Company and supplemented that all corporate action required to that date) from be taken for the counsel identified in each authorization, issuance and sale of such ScheduleStock had been validly and sufficiently taken.
(fg) Unless otherwise agreed At the Commencement Date and on each Settlement Date, the Company shall have furnished to by the Sales Manager, the Sales Manager must have received such appropriate further information, certificates and documents as of the date of this Sales Agreement Manager may reasonably request. All such opinions, certificates, letters and each time referred to other documents will be in Section 4(m) from its counsel an opinion dated as of the date thereof with respect to the Fund, the Common Shares, the Registration Statement and the Prospectus, this Sales Agreement and the form and sufficiency of all proceedings taken in connection compliance with the sale and delivery of the Common Shares. Such opinion and proceedings shall fulfill the requirements of this Section 5(f) provisions hereof only if such opinion and proceedings they are satisfactory in all respects form and substance to the Sales Manager. The Fund and the Investment Adviser must have furnished to such counsel such documents as counsel may reasonably request for the purpose of enabling them to render such opinion.
(g) Unless otherwise agreed to by the Sales Manager, Company will furnish the Sales Manager must have received on with such conformed copies of such opinions, certificates, letters and other documents as the date of this Sales Agreement a signed letter, dated such date, substantially in the form of Schedule C to this Sales Agreement from the independent registered public accounting firm designated in such Schedule. The Sales Manager also must have received as of each time referred to in Section 4(n) a signed letter from such accountants, dated as of the date thereof, confirming on the basis of a review in accordance with the procedures set forth in their earlier letter that nothing has come to their attention during the period from a date not more than five business days before the date of this Sales Agreement, specified in the letter, to a date not more than five business days before such time, that would require any change in their letter referred to in the foregoing sentence. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Sales Agreement will comply only if they are in form and scope shall reasonably satisfactory to counsel for the Sales Manager, provided that any such documents, forms of which are annexed hereto, shall be deemed satisfactory to such counsel if substantially in such formrequest.
Appears in 1 contract
Conditions of the Sales Manager’s Obligations. 4.1 The obligations of the Sales Manager to sell Common Shares are the Stock as provided in this Agreement shall be subject to the accuracy on accuracy, as of the date of this Sales Agreementhereof, and as of each Settlement DateDate contemplated under this Agreement, of the representations and warranties of the Fund and the Investment Adviser Company in this Sales Agreement, to the accuracy and completeness of all material statements made by the Fund and the Investment Adviser or any of their respective officers in any certificate delivered to the Sales Manager or its counsel pursuant to this Sales Agreement, to performance by the Fund and the Investment Adviser Company of their respective its obligations under in this Sales Agreement and to each of the following additional conditions:
(a) The Registration Statement must have become has been declared effective. The Prospectus must have been filed in accordance with Rule 497(b) or (h) or a certificate must have been filed in accordance with Rule 497(j), as the case may be, under the Securities Act.
(b) No stop order suspending the effectiveness of the Registration Statement may be in effect shall have been issued and no proceedings proceeding for such that purpose may be pending before shall have been instituted or, to the knowledge of counsel to the Company or the Sales Manager, threatened by the Commission, and any requests request of the Commission for additional information on the part of the Commission (to be included in the Registration Statement or the Prospectus or otherwise) must be shall have been complied with or waived to the Sales Manager’s reasonable satisfaction of satisfaction. The supplement to the Prospectus contemplated by Section 3.1(a) above has been filed.
(b) The Sales Manager shall not have advised the Company that the disclosures in the Registration Statement or the Prospectus are not reasonably acceptable to the Sales Manager.
(c) Since Except as contemplated in the Prospectus, subsequent to the respective dates as of which information is given in the Registration Statement and the Prospectus, (i) there must not have been any material change in the Common Shares except as set forth in or contemplated by the Prospectus; (ii) there must shall not have been any material adverse change in the general affairscapital stock of the Company, or any material adverse change, or any development that may reasonably be expected to cause a material adverse change, in the condition (financial or other), business, prospects, management, business, financial condition net worth or results of operations of the Fund Company, or the Investment Adviser whether or not arising from transactions any adverse change in the ordinary course of business as set forth in or contemplated by the Prospectus; (iii) the Fund must not have sustained rating assigned to any material loss or interference with its business from any court or from legislative or other governmental action, order or decree, whether foreign or domestic, or from any other occurrence not described in the Registration Statement and the Prospectus; and (iv) there must not have occurred any event that makes untrue or incorrect in any material respect any statement or information contained in the Registration Statement or the Prospectus or that is not reflected in the Registration Statement or the Prospectus but should be reflected therein in order to make the statements or information therein (in the case debt securities of the ProspectusCompany, in light of the circumstances in which they were made) not misleading in any material respect; if, in the judgment of the Sales Manager, any such development referred to in clause (i), (ii), (iii), or (iv) of this paragraph (c) makes it impracticable or inadvisable to consummate the sale and delivery of the Common Shares pursuant to this Sales Agreement at the then current market price of the Common Sharesif any.
(d) Unless otherwise agreed The Sales Manager shall have received at the date of the first sale of Stock hereunder (the “Commencement Date”) and at every other date specified in Section 3.1(n) above, opinions of Company Counsel and special counsel, dated as of the Commencement Date and dated as of such other date, in form and substance reasonably acceptable to by the Sales Manager.
(e) At the Commencement Date and at such other dates specified in Section 3.1(o) above, the Sales Manager must shall have received as a “comfort letter” from Deloitte & Touche LLP, independent public accountants for the Company, or other independent accountants then retained by the Company, dated the date of each Settlement Date delivery thereof, in form and substance satisfactory to the Sales Manager.
(f) The Sales Manager shall have received from the Company a certificate, dated such dateor certificates, signed by (i) the Chief Financial Officer and (ii) the President and Chief Executive Officer or any Vice President of the President or a Vice-President Company, dated as of the Commencement Date and (unless the chief financial or accounting officer Company is not then selling Stock through the Sales Manager and has not requested the Sales Manager to sell Stock) dated as of the first business day of each calendar month thereafter (each, a “Certificate Date”), to the effect that, to the best of their knowledge based upon reasonable investigation:
(i) The representations and warranties of the Fund Company in this Agreement are true and the Investment Adviser certifying (in their capacity correct, as such officers and, with respect to clauses (ii), (iii) if made at and (vi) below, on behalf as of the Fund and Commencement Date or the Investment Adviser, Certificate Date (as the case may be) that ), and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to the Commencement Date and each such Certificate Date (i) as the signers have carefully examined the Registration Statement, the Prospectus and this Sales Agreement, case may be);
(ii) No stop order suspending the representations effectiveness of the Fund (with respect Registration Statement has been issued, and no proceeding for that purpose has been instituted or, to the certificates from knowledge of such Fund officersofficer after due inquiry, is threatened, by the Commission;
(iii) and the representations of the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) in this Sales Agreement are accurate on and as of Since the date of this Agreement there has occurred no event required to be set forth in an amendment or supplement to the certificateRegistration Statement or Prospectus that has not been so set forth and there has been no document required to be filed under the Exchange Act and the rules and regulations of the Commission thereunder that upon such filing would be deemed to be incorporated by reference in the Prospectus that has not been so filed; and
(iv) Since the date of this Agreement, (iii) there has not been any material adverse change in the general affairsassets or properties, business, prospects, management, business, financial condition or results of operations operations, or condition (financial or otherwise) of the Fund (with respect Company, which has not been described in an amendment or supplement to the certificates from such Fund officers) Registration Statement or the Investment Adviser Prospectus (with respect to the certificates from such officers of the Investment Adviser), which change would materially and adversely affect the ability of the Fund directly or the Investment Adviser, as the case may be, to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement (with respect to the certificates from such officers of the Investment Adviser), whether or not arising from transactions in the ordinary course of business, (iv) with respect to the Fund only, no order suspending the effectiveness of the Registration Statement, prohibiting the sale of any of the Common Shares or otherwise having a material adverse effect on the Fund has been issued and no proceedings for any such purpose are pending before or, to the knowledge of such officers after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic, (v) no order having a material adverse effect on the ability of the Investment Adviser to fulfill its obligations under this Sales Agreement or the Investment Advisory Agreement, as the case may be, has been issued and no proceedings for any such purpose are pending before or, to the knowledge of the officers of the Investment Adviser after reasonable investigation, threatened by the Commission or any other regulatory body, whether foreign or domestic and (vi) each of the Fund (with respect to the certificates from such Fund officers) and the Investment Adviser (with respect to the certificates from such officers of the Investment Adviser) has performed all of its respective agreements that this Sales Agreement requires it to perform by such Settlement Date (to the extent not waived in writing by the Sales Managerincorporation).
(eg) Unless otherwise agreed At the Commencement Date and on each Settlement Date, the Company shall have furnished to by the Sales Manager, the Sales Manager must have received such appropriate further information, officers’ certificates and similar documents as of the date of this Sales Agreement and each time referred to in Section 4(m) the opinions dated as of the date thereof substantially in the form of Schedules A and B to this Sales Agreement (modified in the case of times referred to in Section 4(m) as necessary to relate to the Registration Statement and the Prospectus as amended and supplemented to that date) from the counsel identified in each such ScheduleManager may reasonably request.
(fh) Unless otherwise agreed to by At the Sales ManagerCommencement Date and on each Settlement Date, the Sales Manager must Company shall have received as of listed for quotation the date of this Sales Agreement Stock on the Trading Market. All such opinions, certificates, letters and each time referred to other documents will be in Section 4(m) from its counsel an opinion dated as of the date thereof with respect to the Fund, the Common Shares, the Registration Statement and the Prospectus, this Sales Agreement and the form and sufficiency of all proceedings taken in connection compliance with the sale and delivery of the Common Shares. Such opinion and proceedings shall fulfill the requirements of this Section 5(f) provisions hereof only if such opinion and proceedings they are satisfactory in all respects form and substance to the Sales Manager. The Fund and the Investment Adviser must have furnished to such counsel such documents as counsel may reasonably request for the purpose of enabling them to render such opinion.
(g) Unless otherwise agreed to by the Sales Manager, Company will furnish the Sales Manager must have received on with such conformed copies of such opinions, certificates, letters and other documents, as the date of this Sales Agreement a signed letter, dated such date, substantially in the form of Schedule C to this Sales Agreement from the independent registered public accounting firm designated in such Schedule. The Sales Manager also must have received as of each time referred to in Section 4(n) a signed letter from such accountants, dated as of the date thereof, confirming on the basis of a review in accordance with the procedures set forth in their earlier letter that nothing has come to their attention during the period from a date not more than five business days before the date of this Sales Agreement, specified in the letter, to a date not more than five business days before such time, that would require any change in their letter referred to in the foregoing sentence. All opinions, letters, evidence and certificates mentioned above or elsewhere in this Sales Agreement will comply only if they are in form and scope shall reasonably satisfactory to counsel for the Sales Manager, provided that any such documents, forms of which are annexed hereto, shall be deemed satisfactory to such counsel if substantially in such formrequest.
Appears in 1 contract
