Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time and Settlement Date, (ii) to the performance by each of the Transaction Entities of its obligations hereunder, (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b); each Interim Prospectus Supplement, if any, shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Company shall have requested and caused the Company Counsel to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2. (c) The Company shall have requested and caused Maryland Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B. (d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C. (e) The Manager shall have received from Xxxxxxx Procter LLP, counsel for the Manager, on each Representation Date, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters. (f) The Company shall have furnished or caused to be furnished to the Manager, on each Representation Date, a certificate of the Company, signed by the Chairman of the Board, Chief Executive Officer, President or General Counsel, and the principal financial or accounting officer of the Company, dated as of such date, to the effect that the signer of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the representations and warranties of the Transaction Entities in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Transaction Entities, threatened; and (iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package, there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus. (g) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634), as well as confirming that they have performed a review of any unaudited interim financial information of the Transaction Entities included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards Xx. 000 (XX 000X). References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letter. (h) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in Section 6(g) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto). (i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b). (j) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. (k) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (l) The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager. (m) Prior to each Settlement Date, the Transaction Entities shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date by the Manager. Notice of such cancellation shall be given to the Company in writing or by facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Procter LLP, counsel for the Manager, at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, on each such date as provided in this Agreement.
Appears in 5 contracts
Samples: Equity Distribution Agreement (Digital Realty Trust, Inc.), Equity Distribution Agreement (Digital Realty Trust, Inc.), Equity Distribution Agreement (Digital Realty Trust, Inc.)
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time and Settlement Dateof Delivery, (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b); each Interim Prospectus Supplement, if any, shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa) with respect to any sale of this AgreementShares; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Hxxxx Lovells US LLP, counsel to the Company Counsel and the Operating Partnership, to furnish to the Manager, on each Representation Dateevery date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed effect set forth in Annex II-1 and II-2 hereto and to such further effect as the counsel to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2may reasonably request.
(c) The Company shall have requested and caused Sxxx Xxxxx LLP, Maryland Counselcounsel for the Company and the Operating Partnership, to furnish to the Manager, on each Representation Dateevery date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, substantially to the effect set forth in Annex III hereto and to such further effect as the form attached hereto as Exhibit B.counsel to the Manager may reasonably request:
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager shall have received from Xxxxxxx Procter LLPSidley Austin llp, counsel for the Manager, on each Representation Dateevery date specified in Section 4(m) of this Agreement, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters. In giving their opinion, Sidley Austin LLP may rely as to matters involving the laws of the State of Maryland upon the opinion of Sxxx Xxxxx LLP or upon the opinion of counsel satisfactory to the Manager.
(fe) The Company shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chairman of the Board, Chief Executive Officer, Officer or the President or General Counsel, and the principal financial or accounting officer of the Company, dated as of such date, to the effect that the signer signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Transaction Entities Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities 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 date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Transaction EntitiesCompany’s knowledge, threatened; and;
(iii) since the date of the most recent financial statements included or incorporated by reference in the Registration Statement, the Disclosure PackagePackage and the Prospectus (exclusive of any amendment or supplement thereto), there has been no Material Adverse EffectChange, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the ProspectusProspectus (exclusive of any amendment or supplement thereto); and
(iv) there is not pending or threatened any action, suit, proceeding, inquiry or investigation, to which the Company, the Operating Partnership or any of their subsidiaries is a party, or to which any of their respective properties or assets is subject, before or brought by any court or governmental agency or body, domestic or foreign, which would reasonably be expected to result in a Material Adverse Change, or which would reasonably be expected to materially and adversely affect the properties or assets thereof or the consummation of the transactions contemplated in this Agreement or the performance by the Company or the Operating Partnership of their obligations under this Agreement.
(f) The Operating Partnership shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the chief executive officer and chief financial officer or chief accounting officer of the sole member of Campus Crest Communities GP, LLC, the general partner of the Operating Partnership, confirming that the representations and warranties of the Operating Partnership in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date.
(g) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chief Financial Officer of the Company, dated as of such date, in form satisfactory to the Manager.
(h) The Company shall have requested and caused the Accountants KPMG LLC to have furnished to the Manager, on every date specified in Section 4(p4(n) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, which letters shall cover, without limitation, the various financial containing statements and disclosures contained or incorporated by reference information of the type customarily included in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in respect to the Statement on Auditing Standards No. 72 (AU 634), as well as confirming that they have performed a review of any unaudited interim financial statements and certain financial information of the Transaction Entities included or incorporated by reference in the Registration Statement, the Disclosure Package and or the Prospectus in accordance with Statement Prospectus; provided, that the letter delivered on Auditing Standards Xx. 000 (XX 000X)the such date shall use a “cut-off” date no more than three business days prior to the such date. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letter.
(hi) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (h) of this Section 6(g) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of businessMaterial Adverse Change, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(ij) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(jk) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in or withdrawal of the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(kl) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(lm) The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager.
(mn) Prior to each Settlement DateDate and Time of Delivery, as applicable, the Transaction Entities Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Procter LLPSidley Austin llp, counsel for the Manager, at 00 Xxxxx 700 Xxxxxxx Xxxxxx, XxxxxxXxx Xxxx, Xxxxxxxxxxxxx Xxx Xxxx 00000, on each such date as provided in this Agreement.
Appears in 4 contracts
Samples: Equity Distribution Agreement (Campus Crest Communities, Inc.), Equity Distribution Agreement (Campus Crest Communities, Inc.), Equity Distribution Agreement (Campus Crest Communities, Inc.)
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time and Settlement Dateof Delivery, (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement, if any, Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa3(a)(ix) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused the Company Counsel Counsel, to furnish to the Manager, on each Representation Dateevery date specified in Section 4(l) of this Agreement, its opinionwritten opinions, substantially similar to the form attached hereto as Exhibit 6(b)(i) and Exhibit 6(b)(ii), dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2.
(c) The Company shall have requested and caused Maryland Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager shall have received from Xxxxxxx Procter Hunton & Xxxxxxxx LLP, counsel for the Manager, on each Representation Dateevery date specified in Section 4(m) of this Agreement, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(fd) The Company shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chairman of the Board, the Chief Executive Officer, the President or the Executive Vice President, General Counsel, Counsel and Secretary and the principal financial or accounting officer of the Company, or such other executive officers of the Company reasonably acceptable to the Manager, dated as of such date, to the effect that the signer signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Transaction Entities Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities 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 date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Transaction EntitiesCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in or incorporated by reference in into the Registration Statement and the Disclosure Package, Package there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package Registration Statement and the ProspectusDisclosure Package.
(ge) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p4(n) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance reasonably satisfactory to the Manager, which letters shall cover, without limitation, confirming that they are independent accountants within the various financial statements and disclosures contained or incorporated by reference in meaning of the Registration Statement, the Disclosure Package Act and the Prospectus Exchange Act and other matters ordinarily covered the respective applicable rules and regulations adopted by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634), as well as confirming Commission thereunder and that they have performed a review of any unaudited interim financial information of the Transaction Entities Company included or incorporated by reference in the Registration Statement, the Disclosure Package Statement and the Prospectus in accordance with Statement on Auditing Standards XxNo. 000 100, and stating in effect that:
(XX 000Xi) in their opinion the audited financial statements and financial statement schedules included or incorporated by reference in the Registration Statement and the Prospectus and reported on by them comply as to form with the applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and its subsidiaries; their limited review, in accordance with standards established under Statement on Auditing Standards No. 100, of the unaudited interim financial information included or incorporated by reference in the Registration Statement and the Prospectus; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and the audit committee of the Company and the subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to the date of the most recent audited financial statements included or incorporated by reference in the Registration Statement and the Prospectus, nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included or incorporated by reference in the Registration Statement and the Prospectus do not comply as to form with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or incorporated by reference in Quarterly Reports on Form 10-Q under the Exchange Act; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by reference in the Registration Statement and the Prospectus;
(2) with respect to the period subsequent to the date of the most recent financial statements (other than any capsule information), audited or unaudited, included or incorporated by reference in the Registration Statement and the Prospectus, there were any changes, at a specified date not more than five days prior to the date of the letter, in the capital stock and consolidated debt of the Company or decreases in the stockholders’ equity of the Company as compared with the amounts shown on the consolidated balance sheet dated as of the most recent financial statements included or incorporated by reference in the Registration Statement and the Prospectus included or incorporated by reference in the Registration Statement and the Prospectus, or for the period from such date to such specified date there were any decreases, as compared with the appropriate comparative period in consolidated revenues or in total or per share amounts of consolidated earnings of the Company before extraordinary items or of consolidate earnings except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Manager;
(3) the information included or incorporated by reference in the Registration Statement and the Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data) and Item 503(d) (Ratio of Earnings to Fixed Charges) is not in conformity with the applicable disclosure requirements of Regulation S-K; and
(4) To the extent capsule financial information is included or incorporated by reference in the Registration Statement and the Prospectus, the unaudited capsule information does not agree with the amounts set forth in the unaudited financial statements for the same periods or were not determined on a basis substantially consistent with that of the corresponding amounts in the audited financial statements included or incorporated by reference in the Registration Statement and the Prospectus; and
(iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth or incorporated by reference in the Registration Statement and the Prospectus and in Exhibit 12 to the Registration Statement agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (ge) include any supplement thereto at the date of the letter.
(hf) Since the respective dates as of which information is disclosed in the Registration Statement, Statement and the Disclosure Package and the ProspectusPackage, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6(g) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), ) and the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(ig) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(jh) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ki) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(lj) The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager.
(mk) Prior to each Settlement DateDate and Time of Delivery, as applicable, the Transaction Entities Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Procter Hunton & Xxxxxxxx LLP, counsel for the Manager, at 00 Xxxxx Bank of America Plaza, Suite 4100, 000 Xxxxxxxxx Xxxxxx, XxxxxxX.X., Xxxxxxxxxxxxx Xxxxxxx, Xxxxxxx 00000-0000, Attn: Xxxxxxxxxxx X. Xxxxx, on each such date as provided in this Agreement.
Appears in 3 contracts
Samples: Equity Distribution Agreement (National Retail Properties, Inc.), Equity Distribution Agreement (National Retail Properties, Inc.), Equity Distribution Agreement (National Retail Properties, Inc.)
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time and Settlement Dateof Delivery, (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b); each Interim Prospectus Supplement, if any, shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa) with respect to any sale of this AgreementShares; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused the Company Counsel Counsel, to furnish to the Manager, on each Representation Dateevery date specified in Section 4(l) of this Agreement, its opinionopinion and negative assurance letter, in form and substance reasonably satisfactory to the Manager, dated as of such date and addressed to the Manager. In rendering such opinion, substantially in such counsel may rely (A) as to matters involving the form attached hereto as Exhibit A-1. Such counsel shall also have furnished application of laws of any jurisdiction other than the States of California, Delaware or New York, or the Federal laws of the United States, to the Managerextent they deem proper and specified in such opinion, on each Representation Date, a written statement, addressed upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Manager and dated (B) as to matters of such datefact, substantially to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the form attached hereto as Exhibit A-2Settlement Date.
(c) The Company shall have requested and caused Maryland Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager shall have received from Xxxxxxx Procter Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Manager, on each Representation Dateevery date specified in Section 4(m) of this Agreement, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, Statement and the Disclosure Package, the Prospectus (together with any supplement thereto) Package and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(fd) The Company shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4(k) of this Agreement, (A) a certificate of the Company, signed by the Chairman of the Board, Chief Executive Officer, President or General Counsel, and the principal financial or accounting an executive officer of the Company, dated as of such date, to the effect that the signer signers of such certificate have carefully examined the Registration Statement, Statement and the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Transaction Entities Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities 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 date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Transaction EntitiesCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package, there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus.
(g) The Company shall have requested and caused the Accountants to have furnished to the Manager, material adverse effect on every date specified in Section 4(p) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634), as well as confirming that they have performed a review of any unaudited interim financial information of the Transaction Entities included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards Xx. 000 (XX 000X). References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letter.
(h) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in Section 6(g) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package Registration Statement and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act Package; and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(j) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(l) The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager.
(m) Prior to each Settlement Date, the Transaction Entities shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date by the Manager. Notice of such cancellation shall be given to the Company in writing or by facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Procter LLP, counsel for the Manager, at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, on each such date as provided in this Agreement.
Appears in 2 contracts
Samples: Equity Distribution Agreement (Roku, Inc), Equity Distribution Agreement (Roku, Inc)
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time and Settlement Date, (ii) to the performance by each of the Transaction Entities of its obligations hereunder, (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b); each Interim Prospectus Supplement, if any, shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused the Company Counsel to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2.
(c) The Company shall have requested and caused Maryland Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager shall have received from Xxxxxxx Procter LLP, counsel for the Manager, on each Representation Date, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished or caused to be furnished to the Manager, on each Representation Date, a certificate of the Company, signed by the Chairman of the Board, Chief Executive Officer, President or General Counsel, Counsel and the principal financial or accounting officer of the Company, dated as of such date, to the effect that the signer of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Transaction Entities in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Transaction Entities, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package, there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus.
(g) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634), as well as confirming that they have performed a review of any unaudited interim financial information of the Transaction Entities included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards Xx. 000 (XX 000X). References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letter.
(h) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in Section 6(g) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(j) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(l) The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager.
(m) Prior to each Settlement Date, the Transaction Entities shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date by the Manager. Notice of such cancellation shall be given to the Company in writing or by facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Procter LLP, counsel for the Manager, at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, on each such date as provided in this Agreement.
Appears in 2 contracts
Samples: Equity Distribution Agreement (Digital Realty Trust, Inc.), Equity Distribution Agreement (Digital Realty Trust, Inc.)
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement with respect to a Placement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time and Settlement DateTime of Delivery, (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any Any supplement thereto, to the Prospectus required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b); each Interim Prospectus Supplement, if any, shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa) with respect to any sale of this AgreementShares; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused the Company Counsel Counsel, to furnish to the Manager, on each Representation Datethe dates specified in Section 4(l)(i) of this Agreement, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished and substance reasonably satisfactory to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2.
(c) The Company shall have requested and caused Maryland Company IP Counsel, intellectual property counsel for the Company, to furnish to the Manager, on each Representation Datethe dates specified in Section 4(l)(ii) of this Agreement, its opinion, dated as of such date and addressed to the Manager, substantially in form and substance reasonably satisfactory to the form attached hereto as Exhibit B.Manager.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager shall have received from Xxxxxxx Procter Xxxxxx LLP, counsel for the Manager, Manager on each Representation Datedate which the delivery of the Company Counsel legal opinion is required pursuant to Section 4(l)(i) of this Agreement, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(fe) The Company shall have furnished or caused to be furnished to the Manager, on each Representation Datethe dates specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chairman of the Board, the President, the Chief Executive Officer, President Officer or General Counsel, and the principal financial or principal accounting officer of the Company, dated as of such date, to the effect that the signer of such certificate have has carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Transaction Entities Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities 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 date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Transaction EntitiesCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package, there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus.
(gf) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p4(m) hereof, the Comfort Letter that is required to be delivered pursuant to Section 4(m) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance reasonably satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634), as well as confirming that they have performed a review of any unaudited interim financial information of the Transaction Entities included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards Xx. 000 (XX 000X). References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letter.
(hg) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease in financial statement items specified in the letter or letters referred to in paragraph (f) of this Section 6(g) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) Package, the effect of whichwhich is, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of market the Shares as on the terms and in the manner contemplated by the Registration Statement (exclusive of any amendment thereof), in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto)Prospectus.
(ih) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus or prospectus supplement filed pursuant to Rule 424(b).
(ji) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(kj) If applicable, FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(lk) The Shares shall have been listed and admitted and authorized for trading on the NYSENasdaq Global Select Market, and satisfactory evidence of such actions shall have been provided to the Manager.
(ml) Prior to each Settlement DateDate and Time of Delivery, as applicable, the Transaction Entities Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by facsimile telephone or electronic mail and confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Procter Xxxxxx LLP, counsel for the Manager, at 00 Xxxxx XxxxxxXxxxxx Xxxxx, XxxxxxNew York, Xxxxxxxxxxxxx 00000New York 10001-2157, on each such date as provided in this Agreement.
Appears in 2 contracts
Samples: Sales Agreement (Apellis Pharmaceuticals, Inc.), Open Market Sale Agreement (Apellis Pharmaceuticals, Inc.)
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject subject, in their discretion, to (i) the accuracy of the condition that all representations and warranties on the part and other statements of the Transaction Entities contained Company herein are, at and as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, true and Settlement Date, correct (ii) except to the performance by each extent such representations and warranties expressly related to a specific earlier date, in which case such representations and warranties shall be true and correct as of such specified earlier date), the Transaction Entities condition that the Company shall have performed all of its obligations hereunder, (iii) hereunder theretofore to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereofbe performed, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be Prospectus shall have been filed with the Commission have been filed in pursuant to Rule 424(b) under the manner and Act within the applicable time period required prescribed for such filing by Rule 424(b)the rules and regulations under the Act and in accordance with Section 4(a) hereof; each Interim Prospectus Supplement, if any, shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa4(q) of this Agreement; any other all material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, Act shall have been filed with the Commission within the applicable time periods period prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use part thereof shall have been issued and no proceedings proceeding for that purpose or pursuant to Section 8A of the Act shall have been instituted initiated or, to the knowledge of the Company, threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or threatened.any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or, to the knowledge of the Company, threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction;
(b) The Company shall have requested and caused the Company Counsel to furnish to the ManagerXxxxxx, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2.
(c) The Company shall have requested and caused Maryland Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager shall have received from Xxxxxxx Procter Xxxx & Xxxxxxxx LLP, counsel for the Manager, shall have furnished to you, on each Representation Date, every date specified in Section 4(m) of this Agreement such written opinion or opinions, dated as of such date, in form and substance satisfactory to you and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters
(i) O’Melveny & Xxxxx LLP, counsel for the Company, shall have furnished to you, on every date specified in Section 4(l) of this Agreement, such written opinion, dated as of such date, addressing the content included in Annex B hereto, in form and addressed substance reasonably satisfactory to you; and (ii) J. Xxxxxx Xxxxxx, Senior Vice President, Co-Head Renewable Fuels and Chief Legal Officer of the ManagerCompany, shall have furnished to you, on every date specified in Section 4(l), such written opinion, dated as of such date, addressing the content included in Annex C hereto, in form and substance reasonably satisfactory to you;
(d) The Company shall cause KPMG LLP, or other independent accountants for the Company appointed by the Audit Committee of the Board of Directors of the Company, shall have furnished to you, on every date specified in Section 4(n) of this Agreement, a letter or letters, dated as of such date, in form and substance reasonably satisfactory to you, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained or incorporated by reference in the Registration Statement and the Prospectus;
(e) On or after each Applicable Time, there shall not have been (i) any change in the capital stock or long term debt of the Company or any of its subsidiaries or (ii) any change or effect in or affecting (x) the business, properties, general affairs, management, financial position, stockholders' equity or results of operations of the Company and its subsidiaries, taken as a whole, except as set forth or contemplated in the Prospectus, or (y) the ability of the Company to perform its obligations under this Agreement, including the issuance and sale of the Shares, or to consummate the Registration Statementtransactions contemplated in the Prospectus, the Disclosure Packageeffect of which, in any such case described in clause (i) or (ii), is in your judgment so material and adverse as to make it impracticable or inadvisable to proceed with the Prospectus public offering or the delivery of the Shares being delivered at such Time of Delivery on the terms and in the manner contemplated in the Prospectus;
(together f) the Financial Industry Regulatory Authority (“FINRA”) shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement;
(g) On or after each Applicable Time, there shall not have occurred any supplement theretoof the events described in Section 8(e)(i) and other related matters as the Manager may reasonably require, and the through (v) of this Agreement.
(h) The Company shall have furnished complied with the provisions of Section 4(f) hereof with respect to such counsel such documents as they may reasonably request for the purpose furnishing of enabling them to pass upon such matters.prospectuses on the New York Business Day next succeeding the date of this Agreement;
(fi) [Reserved.]
(j) The Company shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chairman chief executive officer or the President of the Board, Chief Executive Officer, President or General CounselCompany, and of the principal chief financial or chief accounting officer of the CompanyCompany (or such other officer(s) of the Company as shall be agreed to by the Manager in connection with the delivery of the certificate), dated as of such date, to the effect that the signer signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Transaction Entities in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities 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 date;
(ii) received no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued Statement, and no proceedings for that such purpose or pursuant to Section 8A of the Act have been instituted or, to the knowledge of Company’s knowledge, threatened by the Transaction Entities, threatened; andCommission;
(iiiii) since the date of the most recent financial statements included or incorporated by reference in the Prospectus and the Disclosure Package, there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus.;
(giii) The Company shall have requested the representations and caused the Accountants to have furnished to the Manager, on every date specified warranties set forth in Section 4(p2 of this Agreement (A) hereof and to the extent requested by such representations and warranties are subject to qualifications and exceptions contained therein related to materiality or a Material Adverse Effect, are true and correct with the Manager in connection with any offering same force and effect as though expressly made on and as of the Shares, letters such date (which may refer to letters previously delivered except to the Managerextent such representations and warranties expressly related to a specific earlier date, in which case such representations and warranties shall be true and correct as of such specified earlier date), dated and (B) to the extent such representations and warranties are not subject to any qualifications or exceptions relating to materiality or a Material Adverse Effect, are true and correct in all material respects as those expressly made on and as of such date, in form and substance satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634), as well as confirming that they have performed a review of any unaudited interim financial information of the Transaction Entities included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards Xx. 000 (XX 000X). References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letter.; and
(hiv) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in Section 6(g) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in have complied with all the ordinary course of business, except as set forth in or contemplated in the Disclosure Package agreements hereunder and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(j) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(l) The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager.
(m) Prior to each Settlement Date, the Transaction Entities shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of satisfied all the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date by the Manager. Notice of such cancellation shall be given to the Company in writing or by facsimile confirmed in writing. The documents required on its part to be delivered by this Section 6 shall be delivered performed or satisfied hereunder at the office of Xxxxxxx Procter LLP, counsel for the Manager, at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, on each or prior to such date as provided in this Agreementdate.
Appears in 2 contracts
Samples: Equity Distribution Agreement (Clean Energy Fuels Corp.), Equity Distribution Agreement (Clean Energy Fuels Corp.)
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery (except to the extent such representations and Settlement Datewarranties expressly relate to a specific earlier date (in which case such representations and warranties shall be true and correct as of such specified earlier date)), (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, thereto required by Rule 424 to be filed with the Commission Commission, have been filed in the manner and within the time period required by Rule 424(b); each Interim Prospectus Supplement, if any, shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa) with respect to any sale of this AgreementShares; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused the Company Counsel Counsel, to furnish to the Manager, on each Representation Dateevery date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially effect set forth in the form attached hereto as Exhibit A-2.Annex B.
(c) The Company shall have requested and caused Maryland Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager shall have received from Xxxxxxx Procter Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel for the Manager, on each Representation Dateevery date specified in Section 4(m) of this Agreement, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(fd) The Company shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chairman of the Board, Chief Executive Officer, Officer or the President or General Counsel, and the principal financial or accounting officer of the Company, dated as of such date, to the effect that the signer signers of such certificate have carefully examined the Registration Statement, the Disclosure Package Statement and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Transaction Entities Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date (except to the extent such representations and warranties expressly relate to a specific earlier date (in which case such representations and warranties shall be true and correct as of such specified earlier date)) and the Transaction Entities Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Transaction EntitiesCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure PackageRegistration Statement and the Prospectus, there has been no Material Adverse Effect, Effect except as set forth in or contemplated in the Disclosure Package Registration Statement and the Prospectus.
(ge) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p4(n) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager)letters, dated as of such date, in form and substance satisfactory to the Manager, which letters shall coversubstantially in the form of Annex C hereto, without limitationand confirming that they are independent accountants within the meaning of the Securities Act, the various financial statements and disclosures contained or incorporated by reference in the Registration Statement, the Disclosure Package Exchange Act and the Prospectus respective applicable rules and other matters ordinarily covered regulations adopted by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634), as well as confirming Commission thereunder and that they have performed a review of any unaudited interim financial information of the Transaction Entities Company included or incorporated by reference in the Registration Statement, the Disclosure Package Statement and the Prospectus in accordance with Statement on Auditing Standards XxNo. 000 (XX 000X). References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letter100.
(hf) Since Subsequent to the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package Statement and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6(g) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of businessMaterial Adverse Effect, except as set forth in or contemplated in the Disclosure Package Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and thereof)and the Prospectus (exclusive of any amendment or supplement thereto).
(ig) The Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have paid the required Commission filing fees relating furnished to the Shares within Manager such further information, certificates and documents as the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b)Manager may reasonably request.
(jh) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ki) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(lj) The Shares shall have been listed and admitted and authorized for trading on the NYSENasdaq, and satisfactory evidence of such actions shall have been provided to the Manager.
(m) Prior to each Settlement Date, the Transaction Entities shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled cancelled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Procter Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel for the Manager, at 00 Xxxxx Xxxxxx0000 Xxxxxxxxx Xxxxx, Xxxxxx#1200, Xxxxxxxxxxxxx 00000Irvine, California 92612, on each such date as provided in this Agreement.
Appears in 2 contracts
Samples: Equity Distribution Agreement (Clean Energy Fuels Corp.), Equity Distribution Agreement (Clean Energy Fuels Corp.)
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time and Settlement Dateof Delivery, (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement, if any, Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa4(x) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Manager shall have requested and caused received the opinions of Company Counsel required to furnish be delivered pursuant to Section 4(l) on or before the Manager, date on each Representation Date, its opinion, dated as which such delivery of such date and addressed opinions are required pursuant to the Manager, substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2Section 4(l).
(c) The Company shall have requested and caused Maryland Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager shall have received from Xxxxxxx Procter LLP, counsel for the Manager, opinion of IP Counsel or officer’s certificate required to be delivered pursuant to Section 4(m) on or before each Representation Date, date on which such delivery of such opinion or opinions, dated as of such date and addressed officer’s certificate is required pursuant to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such mattersSection 4(m).
(fd) The Company shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chairman of the Board, Board or the Chief Executive Officer, President or General Counsel, Officer and the principal financial or accounting officer of the Company, dated as of such date, to the effect that the signer signers of such certificate have carefully examined the Registration Statement, the Disclosure Package Statement and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Transaction Entities Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities 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 date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Transaction EntitiesCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure PackageProspectus, there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), business prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus.
(ge) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p4(n) hereof and to the extent requested by the Manager in connection with any offering of the Shareshereof, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance reasonably satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures contained or incorporated by reference substantially in the Registration Statementform previously provided to the Manager, confirming that they are independent accountants within the Disclosure Package meaning of the Act and the Prospectus Exchange Act and other matters ordinarily covered the respective applicable rules and regulations adopted by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634), as well as confirming Commission thereunder and that they have performed a review of any unaudited interim financial information of the Transaction Entities Company included or incorporated by reference in the Registration Statement, the Disclosure Package Statement and the Prospectus in accordance with Statement on Auditing Standards XxNo. 000 (XX 000X). References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letter100.
(hf) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package Statement and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in Section 6(g) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, which is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Prospectus (exclusive of any amendment or supplement thereto).
(i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(jg) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(kh) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(li) The Shares shall have been listed and admitted and authorized for trading on the NYSENasdaq, and satisfactory evidence of such actions shall have been provided to the Manager.
(mj) Prior to each Settlement DateDate and Time of Delivery, as applicable, the Transaction Entities Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date by the Manager. Notice of such cancellation shall be given to the Company in writing or by facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxx & Xxxxxxx Procter LLP, counsel for the Manager, at 00 00000 Xxxx Xxxxx XxxxxxXxxxx, XxxxxxXxx Xxxxx, Xxxxxxxxxxxxx Xxxxxxxxxx 00000, on each such date as provided in this Agreement.
Appears in 2 contracts
Samples: Equity Distribution Agreement, Equity Distribution Agreement (Arena Pharmaceuticals Inc)
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company and the Partnership contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time and Settlement Dateof Delivery, (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement, if any, Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa3(a)(viii) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.. 32
(b) The Company shall have requested and caused the Company Counsel Counsel, to furnish to the Manager, on each Representation Dateevery date specified in Section 4(k) of this Agreement, its opinionan opinion of Company Counsel addressed to the Manager in the form of Exhibits A-1 and A-2, dated as of such date and a letter from Hunton & Xxxxxxxx LLP, addressed to the Manager, substantially in the form attached hereto as of Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2A-3.
(c) The Company shall have requested and caused Maryland Senior Corporate Counsel, to furnish to the Manager, on each Representation Dateevery date specified in Section 4(k) of this Agreement, its opinionan opinion of Senior Corporate Counsel addressed to the Manager in the form of Exhibit B
(d) The Company shall have requested and caused Senior Corporate Counsel, to furnish to the Manager, on every date specified in Section 4(k) of this Agreement, an opinion of Maryland Counsel addressed to the Manager in the form of Exhibit C.
(e) The Manager shall have received on every date specified in Section 4(k) of this Agreement, the favorable opinion of Xxxxxxxx Chance US LLP, counsel for the Managers, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager shall have received from Xxxxxxx Procter LLP, counsel for the Manager, on each Representation Date, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(f) The Company and the Partnership shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4(k) of this Agreement a certificate of its Chief Financial Officer and its Chief Accounting Officer, in the case of the Company, and of its general partner, in the case of the Partnership, in the form attached as Exhibit D hereto. The Managers shall have received from the Company and the Partnership on every date specified in Section 4(k), a certificate of the Company, signed by the Chairman of the Board, its Chief Executive Financial Officer and its Chief Accounting Officer, President or General Counsel, and in the principal financial or accounting officer case of the Company, dated as of such dateand its general partner, to in the effect that the signer of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties case of the Transaction Entities in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted orPartnership, to the knowledge of the Transaction Entities, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package, there has been no Material Adverse Effect, except form attached as set forth in or contemplated in the Disclosure Package and the Prospectus.Exhibit E hereto
(g) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p4(n) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered a comfort letter addressed to the Manager), dated as of such date, Managers in the form and substance satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634), as well as confirming that they have performed a review of any unaudited interim financial information of the Transaction Entities included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards Xx. 000 (XX 000X). References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letterManagers.
(h) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any no material adverse change or decrease specified in the letter or letters referred to in Section 6(g) or (ii) any change, or any development involving reasonably expected to result in a prospective changematerial adverse change in the business, in properties, management, financial condition or affecting the condition (financial or otherwise), earnings, business or properties results of operations of the Company Company, the Partnership and its subsidiaries the Subsidiaries taken as a whole, whether whole shall occur or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) become known the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of 33 Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective post‑effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(j) No Prospectus or amendment or supplement to the Registration Statement or the Prospectus shall have been filed to which the Manager objects in writing
(k) Between the Execution Time and the time of any sale of Shares through the Manager, there (i) no stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings initiated under Section 8(d) or 8(e) of the Securities Act; (ii) the Registration Statement and all amendments thereto shall not have been any decrease contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) the Prospectus and amendments or supplements thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the rating of any light of the Company’s circumstances under which they are made, not misleading; (iv) no Disclosure Package, and no amendment or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or supplement thereto, shall include an untrue statement of a possible change material fact or omit to state a material fact necessary in any such rating that does not indicate order to make the direction statements therein, in the light of the possible changecircumstances under which they are made, not misleading; and (v) none of the Issuer Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(kl) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(lm) The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager.
(mn) The Articles Supplementary shall have been accepted for record by the MSDAT and shall be effective under the Maryland REIT Law.
(o) Prior to each Settlement DateDate and Time of Delivery, as applicable, the Transaction Entities Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. 34 The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Procter Xxxxxxxx Chance US LLP, counsel for the Manager, at 00 Xxxxx XxxxxxXxxx 00xx Xx., XxxxxxXxx Xxxx, Xxxxxxxxxxxxx Xxx Xxxx 00000, on each such date as provided in this Agreement.
Appears in 2 contracts
Samples: Equity Distribution Agreement (Hersha Hospitality Trust), Equity Distribution Agreement (Hersha Hospitality Trust)
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time and Settlement Dateof Delivery, (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b); each Interim Prospectus Supplement, if any, shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa) with respect to any sale of this AgreementShares; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused the Company Counsel to furnish to the Manager, on each Representation Dateevery date specified in Section 4(l) of this Agreement, its opinionopinion and negative assurance letter, in form and substance satisfactory to the Manager, dated as of such date and addressed to the ManagerManager to the effect that:
(i) the Registration Statement has become effective under the Securities Act; any required filing of the Base Prospectus and the Prospectus, substantially and any supplements thereto, pursuant to Rule 424(b) has been made in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished manner and within the time period required by Rule 424(b); to the Managerknowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued, no proceedings for that purpose have been instituted or threatened, and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Securities Act and the Exchange Act and the respective rules thereunder; and such counsel has no reason to believe that on each Representation Date, the Effective Date the Registration Statement contained any untrue statement of a written statement, addressed material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus as of its date and any applicable date related to the Manager and dated as delivery of such dateopinion included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, substantially in the form attached hereto light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial information contained therein, as Exhibit A-2.to which such counsel need express no opinion);
(cii) such counsel has no reason to believe that the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion);
(iii) there is no pending or, to the knowledge of such counsel, threatened action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its subsidiaries or its or their property, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included or incorporated by reference in the Disclosure Package and the Prospectus under the heading “Certain U.S. Federal Income Tax Considerations for Non-U.S. Holders” fairly summarize the matters therein described;
(iv) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the Prospectus, will not be an “investment company” as defined in the Investment Company Act of 1940, as amended, and the rules and regulations promulgated thereunder;
(v) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Securities Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Manager in the manner contemplated in this Agreement and any Terms Agreement, the Disclosure Package and the Prospectus and such other approvals (specified in such opinion) as have been obtained;
(vi) neither the issue and sale of the Shares, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or its subsidiaries pursuant to, (i) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or its subsidiaries is a party or bound or to which its or their property is subject, or (ii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or its subsidiaries or any of its or their properties; and
(vii) no holders of securities of the Company have rights to the registration of such securities under the Registration Statement. The Company shall have also requested and caused Maryland Counsel, the Local Company Counsel to furnish to the Manager, on each Representation Dateevery date specified in Section 4(l) of this Agreement, its opinion, in form and substance satisfactory to the Manager, dated as of such date and addressed to the ManagerManager to the effect that:
(i) the Company is a corporation validly existing and in good standing under the laws of the Commonwealth of Virginia, substantially with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the form attached hereto as Exhibit B.Disclosure Package and the Prospectus;
(dii) The the Company shall has an authorized equity capitalization as set forth in the Disclosure Package and the Prospectus under the heading “Description of Capital Stock”; the capital stock of the Company conforms in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the heading “Description of Capital Stock”; the statements included or incorporated by reference in the Disclosure Package and the Prospectus under the heading “Description of Capital Stock” and Item 15 of Part II of the Registration Statement insofar as such statements purport to constitute summaries of the terms of the Company’s Articles of Incorporation, the Company’s Bylaws or the Virginia Stock Corporation Act (the “VSCA”), constitute accurate summaries of the terms of such documents and statute in all material respects; the Shares have requested been duly authorized and, when issued and caused Tax Counseldelivered to and paid for by the Manager pursuant to this Agreement and any Terms Agreement, will be validly issued, fully paid and nonassessable; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares under the VSCA, the Company’s Articles of Incorporation or the Company’s Bylaws;
(iii) this Agreement and any applicable Terms Agreement have been duly authorized, executed and delivered by the Company;
(iv) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required under the applicable laws of the Commonwealth of Virginia in connection with the transactions contemplated herein, except such as may be required under the blue sky laws of the Commonwealth of Virginia (as to which such counsel need not express any opinion) in connection with the purchase and distribution of the Shares by the Manager in the manner contemplated in this Agreement and any Terms Agreement, the Disclosure Package and the Prospectus and such other approvals (specified in such opinion) as have been obtained; and
(v) neither the issue and sale of the Shares, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will violate (i) the Company’s Articles of Incorporation or the Company’s Bylaws , (ii) any applicable laws of the Commonwealth of Virginia or (iii) any order, decree or regulation, known to such counsel to be applicable to the Company, of any court or governmental agency or body of the Commonwealth of Virginia. In rendering such opinion, the Company Counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of New York or the Federal laws of the United States, to furnish the extent they deem proper and specified in such opinion, upon the opinion of the Local Company Counsel and (B) as to matters of fact, to the Managerextent they deem proper, on each Representation Date, its opinion, dated as certificates of such date responsible officers of the Company and addressed public officials. References to the Manager, substantially Prospectus in this paragraph (b) shall also include any supplements thereto at the form attached hereto as Exhibit C.Settlement Date.
(ec) The Manager shall have received from Xxxxxxx Procter Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Manager, on each Representation Dateevery date specified in Section 4(m) of this Agreement, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, in form and substance satisfactory to the Manager, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(fd) The On every date specified in Section 4(k) of this Agreement, unless a Waiver is applicable, or if the Company decides to sell Shares following a Representation Date when the Company relied on a Waiver, then before the Manager sells any Shares, the Company shall have furnished or caused to be furnished to the Manager, on each Representation Date, Manager a certificate of the Company, signed by the Chairman of the Board, Chief Executive Officer, Board or the President or General Counsel, and the principal financial or accounting officer of the Company, dated as of such date, to the effect that the signer signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Transaction Entities Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities 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 date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Transaction EntitiesCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package, there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus.
(ge) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p4(n) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance reasonably satisfactory to the Manager, which letters shall cover, without limitation, containing statements and information of the various type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and disclosures certain financial information contained in or incorporated by reference in the Registration Statement, the Disclosure Package Prospectus and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634), as well as confirming that they have performed a review of any unaudited interim financial information of the Transaction Entities included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards Xx. 000 (XX 000X). References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letterPackage.
(hf) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6(g) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(jg) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes in Section 3(a)(62) of Rule 436(g) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(kh) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(li) The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager.
(mj) Prior to each Settlement DateDate and Time of Delivery, as applicable, the Transaction Entities Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Procter Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Manager, at 00 Xxxxx 000 Xxxxxxxxx Xxxxxx, XxxxxxXxx Xxxx, Xxxxxxxxxxxxx 00000Xxx Xxxx, on xx each such date as provided in this Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (Owens & Minor Inc/Va/)
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time and Settlement Dateof Delivery, (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement, if any, shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa4(x) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused the Company Counsel and Tax Counsel to each furnish to the Manager, on each Representation Dateevery date specified in Section 4(l) of this Agreement, its opinionsuch opinion or opinions, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished and substance satisfactory to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2.
(c) The Company shall have requested and caused Maryland Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager shall have received from Xxxxxx Xxxxxx & Xxxxxxx Procter LLPllp, counsel for the Manager, on each Representation Dateevery date specified in Section 4(m) of this Agreement, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(fd) The Company shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chairman of the Board, Chief Executive Officer, President or General Counsel, and the principal financial or accounting an executive officer of the CompanyCompany who has specific knowledge of the Company financial matters and is reasonably satisfactory to the Manager, dated as of such date, to the effect that the signer signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Transaction Entities Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities 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 date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Transaction EntitiesCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure PackagePackage and the Prospectus, there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the ProspectusProspectus (exclusive of any supplement thereto).
(ge) The Company shall have requested and caused the Accountants to have each furnished to the Manager, addressed to the Manager, on every date specified in Section 4(p4(n) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance reasonably satisfactory to the Manager, which letters shall cover, without limitation, the various financial Manager and containing such statements and disclosures contained or incorporated by reference information customarily found in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in respect to the Statement on Auditing Standards No. 72 (AU 634), as well as confirming that they have performed a review of any unaudited interim financial statements and certain financial information of the Transaction Entities included Company contained in or incorporated by reference in the Registration Statement, the Disclosure Package Statement and the Prospectus in accordance with Statement on Auditing Standards Xx. 000 (XX 000X)Prospectus. References to the Prospectus in this paragraph (ge) include any supplement thereto at the date of the letter.
(hf) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6(g) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(j) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(kg) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(lh) The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager.
(mi) Prior to each Settlement DateDate and Time of Delivery, as applicable, the Transaction Entities Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxx Xxxxxx & Xxxxxxx Procter LLPllp, counsel for the Manager, at 00 Xxxxx XxxxxxXxx Xxxx, XxxxxxXxx Xxxx, Xxxxxxxxxxxxx 00000, XX 00000 on each such date as provided in this Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (Danimer Scientific, Inc.)
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution TimeTime (as applicable), each Representation Date, and as of each Applicable Time, Settlement Date and Time and Settlement Dateof Delivery, (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement, if any, Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa3(a)(ix) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused the Company Counsel Counsel, to furnish to the Manager, on each Representation Dateevery date specified in Section 4(l) of this Agreement, its opinion or Reliance Letter, as applicable, dated as of such date and addressed to the Manager, in form and substance reasonably satisfactory to the Manager.
(c) The Company shall have requested and caused the Company IP Counsel, to furnish to the Manager, on every date specified in Section 4(m) of this Agreement, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished and substance reasonably satisfactory to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2.
(c) The Company shall have requested and caused Maryland Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager shall have received from Xxxxxxx Procter LLP, counsel for the Manager’s Counsel, on each Representation Dateevery date that the delivery of the Company Counsel legal opinion is required pursuant to Section 4(l) of this Agreement, such opinion or opinionsopinions or Reliance Letter, as applicable, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(fe) The Company shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chairman of the Board, Chief Executive Officer, President Board or General Counsel, the chief executive officer and the principal financial or accounting officer of the Company, dated as of such date, to the effect that the signer signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Transaction Entities Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities 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 date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Transaction EntitiesCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package, there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus.
(gf) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p4(o) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance reasonably satisfactory to the Manager, which letters shall cover, without limitation, confirming that they are independent accountants within the various financial statements and disclosures contained or incorporated by reference in meaning of the Registration Statement, the Disclosure Package Securities Act and the Prospectus Exchange Act and other matters ordinarily covered the respective applicable rules and regulations adopted by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634), as well as confirming Commission thereunder and that they have performed a review of any unaudited interim financial information of the Transaction Entities Company included or incorporated by reference in the Registration Statement, the Disclosure Package Statement and the Prospectus in accordance with Statement on Auditing Standards XxNo. 000 (XX 000X). References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letter100.
(hg) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease in financial statement items specified in the letter or letters referred to in paragraph (e) of this Section 6(g) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(jh) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ki) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(lj) The Shares shall have been listed and admitted and authorized for trading on the NYSENasdaq, and satisfactory evidence of such actions shall have been provided to the Manager.
(mk) Prior to each Settlement DateDate and Time of Delivery, as applicable, the Transaction Entities Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement Agreement, as it relates to the Manager, and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Procter LLP, counsel for the Manager, at 00 Xxxxx 000 Xxxxxx Xxxxxx, XxxxxxXxx Xxxx, Xxxxxxxxxxxxx Xxx Xxxx 00000, on each such date as provided in this Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (PhaseBio Pharmaceuticals Inc)
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Partnership contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time and Settlement Dateof Delivery, (ii) to the performance by each of the Transaction Entities Partnership of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b); each Interim Prospectus Supplement, if any, shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa) with respect to any sale of this AgreementUnits; any other material required to be filed by the Company Partnership pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused the Company Counsel to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2.
(c) The Company shall have requested and caused Maryland Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager shall have received from Xxxxxxx Procter LLP, counsel for the Manager, on each Representation Date, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(f) The Company Partnership shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4(l) hereof, a certificate of the CompanyPartnership, signed by the Chairman on behalf of the Board, Partnership by any two of the Chief Executive Officer, any President, any Executive Vice President, any Senior Vice President or General Counsel, and the principal financial or accounting officer any Vice President of the CompanyGeneral Partner, dated as of such date, to the effect that the signer signers of such certificate have carefully examined the Registration Statement, the Disclosure Package Statement and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) subject to modification to incorporate the disclosures contained in the Registration Statement and the Prospectus, in each case as amended or supplemented as of such date, the representations and warranties of the Transaction Entities Partnership in this Agreement are true and correct on and as of such date with the same effect as if made on such date date; and the Transaction Entities Partnership has complied in all material respects (except with respect to agreements and conditions that are qualified by materiality, which shall be true and correct in all respects) with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Transaction EntitiesPartnership’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure PackageProspectus, there has not been no any change, or any development involving a prospective change, in the partnership interests, capital stock, or long-term debt of the Partnership or any of its subsidiaries that would reasonably be expected to cause a Material Adverse Effect, except or any change in the general affairs, management, financial position, results of operations, cash flows or working capital of the Partnership and its subsidiaries, whether or not arising from transactions in the ordinary course of business, that would reasonably be expected to cause a Material Adverse Effect, other than as set forth in or contemplated in the Disclosure Package and by the Prospectus.
(gc) The Company Partnership shall have requested and caused the Partnership Counsel to furnish to the Manager, on every date specified in Section 4(m) hereof, its opinion, dated as of such date and addressed to the Manager, in the form set forth in Annex II hereto.
(d) The Partnership shall have furnished to the Manager, on every date specified in Section 4(n) hereof, an opinion of the General Counsel, dated as of such date and addressed to the Manager, in the form set forth in Annex III hereto.
(e) The Manager shall have received from Manager’s Counsel on every date specified in Section 4(o) hereof, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Units, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Partnership shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Partnership shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p) hereof and to the extent reasonably requested by the Manager Manager, with advance notice to the Partnership in connection with any offering of the SharesUnits, letters (which may refer to letters previously delivered to the Manager)) containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus, dated as of such date, in form and substance satisfactory to the Manager, which ; provided that the cut-off date for the procedures performed by such accountants and described in such letters shall cover, without limitation, the various financial statements and disclosures contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” be a date not more than five days prior to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634), as well as confirming that they have performed a review of any unaudited interim financial information of the Transaction Entities included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards Xx. 000 (XX 000X). References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the such letter.
(hg) Since Subsequent to the respective dates as of which information is disclosed given in the Registration Statement, the Disclosure Package Statement and the Prospectus, except as otherwise stated therein, there shall not have been occurred (i) any change or decrease specified in the letter or letters referred to in Section 6(g) or (ii) any change, or any development involving a prospective changechange that would reasonably be expected to have a Material Adverse Effect, in or affecting not contemplated by the condition (financial or otherwise)Prospectus, earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions which in the ordinary course of businessManager’s opinion, except as set forth in or contemplated in would materially and adversely affect the Disclosure Package and market for the Prospectus (exclusive of any amendment or supplement thereto) the effect of whichUnits, in any case referred to in clause (i) or (ii) above, isany event or development relating to or involving any of the PNG Entities or any executive officer or director of any of such entities that makes any statement made in the Prospectus untrue or which, in the sole judgment opinion of the ManagerPartnership and its counsel or the Manager and its counsel, so requires the making of any addition to or change in the Prospectus in order to state a material and adverse as fact required by the Act or any other law to be stated therein or necessary in order to make it impractical or inadvisable to proceed with the offering or delivery statements therein, in the light of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof)circumstances under which they were made, the Disclosure Package and not misleading, if amending or supplementing the Prospectus (exclusive of any amendment to reflect such event or supplement thereto)development would, in the Manager’s opinion, materially and adversely affect the market for the Units.
(i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(j) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(kh) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(li) The Shares Units shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager.
(mj) Prior to each Settlement DateDate and Time of Delivery, as applicable, the Transaction Entities Partnership shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above in this Section 6 or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company Partnership in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered to the Manager by this Section 6 shall be delivered at the office of Xxxxxxx Procter LLP, counsel for the ManagerPartnership’s Counsel, at 00 Xxxxx XxxxxxXxxxxx & Xxxxxx L.L.P., Xxxxxx0000 Xxxxxx Xx., Xxxxxxxxxxxxx 00000Houston, Texas 77002, on each such date as provided in this Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (Paa Natural Gas Storage Lp)
Conditions to the Obligations of the Manager. The obligations of the Manager Managers under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company and the Operating Partnership contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time and Settlement Dateof Delivery, (ii) to the performance by each the Company and the Operating Partnership of the Transaction Entities of its their respective obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement, if any, shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa4(cc) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused the Company Counsel to furnish to the ManagerManagers, on each Representation Date, its opinion, dated as of such date and addressed to the ManagerManagers, substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2.A.
(c) The Company shall have requested and caused Maryland Local Counsel, to furnish to the ManagerManagers, on each Representation Date, its opinion, dated as of such date and addressed to the ManagerManagers, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the ManagerManagers, on each Representation Date, its opinion, dated as of such date and addressed to the ManagerManagers, substantially in the form attached hereto as Exhibit C.
(e) The Manager Company shall have requested and caused Maryland Counsel, to furnish to the Managers, on each Representation Date, its opinion, dated as of such date and addressed to the Managers, substantially in the form attached hereto as Exhibit D.
(f) The Managers shall have received from Xxxxxxx Procter LLPllp, counsel for the ManagerManagers, on each Representation Date, such opinion or opinions, dated as of such date and addressed to the ManagerManagers, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager Managers may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(fg) The Company shall have furnished or caused to be furnished to the Manager, on each Representation Date, a certificate of the Company, signed by the Chairman of the Board, Chief Executive Officer, Board or the President or General Counsel, and the principal financial or accounting officer of the Company, dated as of such date, to the effect that the signer signers of such certificate have carefully examined the Registration Statement, Statement and the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Transaction Entities Company and the Operating Partnership in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities has Company and the Operating Partnership have complied with all the agreements and satisfied all the conditions on its their part to be performed or satisfied at or prior to such date;
(ii) the Registration Statement has become effective under the Act and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Transaction EntitiesCompany’s or Operating Partnership’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package, there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the ProspectusPackage.
(gh) The Company shall have requested and caused the Accountants to have furnished to the ManagerManagers, on every date specified in Section 4(p4(q) hereof and to the extent requested by the Manager Managers in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the ManagerManagers), dated as of such date, in form and substance satisfactory to the ManagerManagers, which letters shall cover, without limitation, the various financial statements and disclosures contained or incorporated by reference in the Registration Statement, Statement and the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634), as well as confirming that they have performed a review of any unaudited interim financial information of the Transaction Entities Company included or incorporated by reference in the Registration Statement, Statement and the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards Xx. 000 (XX 000X). References to the Prospectus in this paragraph (gh) include any supplement thereto at the date of the letter.
(hi) Since the respective dates as of which information is disclosed in the Registration Statement, Statement and the Disclosure Package and the ProspectusPackage, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (h) of this Section 6(g) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the a Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), ) and the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(bProspectus).
(j) Between the Execution Time and the time of any sale of the Shares through the a Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(l) The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the ManagerManagers.
(m) Prior to each Settlement DateDate and Time of Delivery, as applicable, the Transaction Entities Company shall have furnished to the Manager Managers such further information, certificates and documents as the a Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the a Manager and counsel for the such Manager, this Agreement and all obligations of the such Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the such Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Procter Xxxxxxxx Chance US LLP, counsel for the ManagerCompany, at 00 Xxxxx X. 00xx Xxxxxx, XxxxxxXxx Xxxx, Xxxxxxxxxxxxx XX, 00000, on each such date as provided in this Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (Cogdell Spencer Inc.)
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time and Settlement Dateof Delivery, (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement, if any, Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa3(a)(viii) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused the Company Counsel Counsel, to furnish to the Manager, on each Representation Dateevery date specified in Section 4(l) of this Agreement, its opinionwritten opinions, substantially similar to the form attached hereto as Exhibit 6(b)(i) and Exhibit 6(b)(ii), dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2.
(c) The Company shall have requested and caused Maryland Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager shall have received from Xxxxxxx Procter LLPXxxxxx & Xxxxxx L.L.P., counsel for the Manager, on each Representation Dateevery date specified in Section 4(m) of this Agreement, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(fd) The Company shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chairman of the Board, the Chief Executive Officer, the President or the Executive Vice President, General Counsel, Counsel and Secretary and the principal financial or accounting officer of the Company, or such other executive officers of the Company reasonably acceptable to the Manager, dated as of such date, to the effect that the signer signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Transaction Entities Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities 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 date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Transaction EntitiesCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in or incorporated by reference in into the Registration Statement and the Disclosure Package, Package there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package Registration Statement and the ProspectusDisclosure Package.
(ge) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p4(n) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance reasonably satisfactory to the Manager, which letters shall cover, without limitation, confirming that they are independent accountants within the various financial statements and disclosures contained or incorporated by reference in meaning of the Registration Statement, the Disclosure Package Act and the Prospectus Exchange Act and other matters ordinarily covered the respective applicable rules and regulations adopted by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634), as well as confirming Commission thereunder and that they have performed a review of any unaudited interim financial information of the Transaction Entities Company included or incorporated by reference in the Registration Statement, the Disclosure Package Statement and the Prospectus in accordance with Statement on the PCAOB Auditing Standards XxNo. 000 4105, Reviews of Interim Financial Information (XX 000X“PCAOB AS 4105”) and stating in effect that:
(i) in their opinion the audited financial statements and financial statement schedules included or incorporated by reference in the Registration Statement and the Prospectus and reported on by them comply as to form with the applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and its subsidiaries; their limited review, in accordance with standards established under PCAOB 4105, of the unaudited interim financial information included or incorporated by reference in the Registration Statement and the Prospectus; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and the audit committee of the Company and the subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to the date of the most recent audited financial statements included or incorporated by reference in the Registration Statement and the Prospectus, nothing came to their attention which caused them to believe that:
(A) any unaudited financial statements included or incorporated by reference in the Registration Statement and the Prospectus do not comply as to form with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or incorporated by reference in Quarterly Reports on Form 10-Q under the Exchange Act; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by reference in the Registration Statement and the Prospectus;
(B) with respect to the period subsequent to the date of the most recent financial statements (other than any capsule information), audited or unaudited, included or incorporated by reference in the Registration Statement and the Prospectus, there were any changes, at a specified date not more than five days prior to the date of the letter, in the capital stock and consolidated debt of the Company or decreases in the stockholders’ equity of the Company as compared with the amounts shown on the consolidated balance sheet dated as of the most recent financial statements included or incorporated by reference in the Registration Statement and the Prospectus included or incorporated by reference in the Registration Statement and the Prospectus, or for the period from such date to such specified date there were any decreases, as compared with the appropriate comparative period in consolidated revenues or in total or per share amounts of consolidated earnings of the Company before extraordinary items or of consolidate earnings except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Manager;
(C) the information included or incorporated by reference in the Registration Statement and the Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data) and Item 503(d) (Ratio of Earnings to Fixed Charges) is not in conformity with the applicable disclosure requirements of Regulation S-K; and
(D) To the extent capsule financial information is included or incorporated by reference in the Registration Statement and the Prospectus, the unaudited capsule information does not agree with the amounts set forth in the unaudited financial statements for the same periods or were not determined on a basis substantially consistent with that of the corresponding amounts in the audited financial statements included or incorporated by reference in the Registration Statement and the Prospectus; and
(iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth or incorporated by reference in the Registration Statement and the Prospectus and in Exhibit 12 to the Registration Statement agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (ge) include any supplement thereto at the date of the letter.
(hf) Since the respective dates as of which information is disclosed in the Registration Statement, Statement and the Disclosure Package and the ProspectusPackage, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6(g) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), ) and the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(ig) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(jh) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ki) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(lj) The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager.
(mk) Prior to each Settlement DateDate and Time of Delivery, as applicable, the Transaction Entities Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Procter LLPXxxxxx & Xxxxxx L.L.P., counsel for the Manager, at 00 0000 Xxxxxxxxxxxx Xxxxxx XX, Xxxxx Xxxxxx000 Xxxx, XxxxxxXxxxxxxxxx, Xxxxxxxxxxxxx X.X. 00000, Attn: Xxxxxxxxxxx X. Xxxxx, on each such date as provided in this Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (National Retail Properties, Inc.)
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Partnership contained herein as of the Execution Time, Time and each Representation Date, and as of each Applicable Time and Settlement Date, (ii) to the performance by each of the Transaction Entities Partnership of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b); each Interim Prospectus Supplement, if any, shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa) with respect to any sale of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433Offered Units; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Partnership shall have requested and caused the Company Counsel Partnership Counsel, to furnish to the Manager, on each Representation Dateevery date specified in Section 4(l) of this Agreement, its opinion, dated as of such date opinion in form and addressed substance reasonably satisfactory to the Manager, substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2.A.
(c) The Company Partnership shall have requested and caused Maryland the Assistant General Counsel, to furnish to the Manager, on each Representation Dateevery date specified in Section 4(l) of this Agreement, its opinion, dated as of such date her opinion in form and addressed substance reasonably satisfactory to the Manager, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager shall have received from Xxxxxxx Procter Xxxxx Xxxxx LLP, counsel for the Manager, on each Representation Dateevery date specified in Section 4(m) of this Agreement, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the SharesOffered Units, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company Partnership shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(fe) The Company Partnership shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4(j) of this Agreement, a certificate of the CompanyPartnership, signed by (1) the Chairman President and Chief Executive Officer of NuStar GP and (2) the BoardSenior Vice President, Chief Executive Officer, President or General Counsel, Financial Officer and the principal financial or accounting officer Treasurer of the CompanyNuStar GP, dated as of such date, to the effect that the signer signers of such certificate have carefully examined the Registration Statement, the Disclosure Package Statement and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations The representations, warranties and warranties agreements of the Transaction Entities Partnership Parties in this Agreement Section 2 are true and correct on and as of such date with date, modified as necessary to relate to the same effect Registration Statement and the Prospectus as if made on amended as of such date and to reflect such necessary modifications as are not material and approved by the Transaction Entities Manager in advance; and that each of the Partnership Parties has complied with all the of its respective agreements contained herein and satisfied all of the respective conditions on its part to be performed or satisfied hereunder at or prior to such date;
(ii) no No stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued issued; and no proceedings or examination for that purpose have been instituted or, to the knowledge of the Transaction Entitiessuch officers, threatened; and the Commission has not notified the Partnership of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and
(iii) They have carefully examined the Registration Statement and the Prospectus, and nothing has come to their attention that would lead them to believe that, (A) (1) the Registration Statement, as of the Effective Date, or (2) the Prospectus, as of its date and on the date of such certificate, did or do contain any untrue statement of a material fact and did or do omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading or (B) since the date of the most recent financial statements included or incorporated by reference in the Disclosure PackageProspectus, there an event has occurred that should have been no Material Adverse Effect, except as set forth in a supplement or contemplated in amendment to the Disclosure Package and Registration Statement or the ProspectusProspectus that has not been so set forth.
(gf) The Company Partnership shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p4(m) hereof and to the extent requested by the Manager in connection with any offering of the SharesOffered Units, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, (i) confirming that they are independent accountants within the meaning of the Securities Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board and (ii) stating, as of the date of such letter (or, with respect to matters involving changes or developments since the respective dates as of which letters shall coverspecified financial information is given in the most recent Prospectus Supplement, without limitationas of a date not more than five days prior to the date of such letter), the various conclusions and findings of such firm with respect to the financial statements and disclosures contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634), as well as confirming that they have performed a review of any unaudited interim financial information of the Transaction Entities included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards Xx. 000 (XX 000X). References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letterofferings.
(hg) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package Statement and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6(g) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company Partnership and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares Offered Units as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto)Prospectus.
(ih) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(j) Between the Execution Time and the time of any sale of Shares through the Manager, there There shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes that term is used in Section 15E of Rule 436(g) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ki) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(lj) The Shares Offered Units shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager.
(mk) Prior to each Settlement Date, the Transaction Entities The Partnership shall have furnished to the Manager Manager, at each date specified in Section 4(j), such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company Partnership in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Procter LLPXxxxx Xxxxx L.L.P., counsel for the Manager, at 00 Xxxxx One Shell Plaza, 000 Xxxxxxxxx Xxxxxx, XxxxxxXxxxxxx, Xxxxxxxxxxxxx Xxxxx 00000, or electronically if agreed to by the parties, on each such date as provided in this Agreement.
Appears in 1 contract
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery (except to the extent such representations and Settlement Datewarranties expressly relate to the specific earlier date (in which case such representations and warranties shall be true and correct as of such specified earlier date)), (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement, if any, Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa4(x) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Xxxx LLP, outside counsel for the Company Counsel Company, to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its letter, dated as of such date and addressed to the Manager, to the effect that the Registration Statement and the Prospectus (other than the financial statements and other financial, accounting and statistical information contained or incorporated by reference in the Registration Statement or the Prospectus, as to which such counsel need not provide negative assurance) comply as to form in all material respects with the applicable requirements of the Act and the Exchange Act and the respective rules thereunder; and such counsel has no reason to believe that on the Effective Date the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus as of its date and as of the date of such letter included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each Representation Datecase, other than the financial statements and other financial or accounting information contained or incorporated by reference in the Registration Statement or the Prospectus, as to which such counsel need not provide negative assurance); such counsel has no reason to believe that the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such letter, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than the financial statements and other financial or accounting information contained or incorporated by reference in the Disclosure Package, as to which such counsel need not provide negative assurance);
(c) The Company shall have requested and caused Xxxxx Xxxx LLP, outside counsel for the Company, to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2.
(c) The Company shall have requested and caused Maryland Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager shall have received from Xxxxxxx Procter LLP, counsel for the Manager, on each Representation Date, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished or caused to be furnished to the Manager, on each Representation Date, a certificate of the Company, signed by the Chairman of the Board, Chief Executive Officer, President or General Counsel, and the principal financial or accounting officer of the Company, dated as of such date, to the effect that the signer of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties Registration Statement has become effective under the Act; any required filing of the Transaction Entities Base Prospectus and the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in this Agreement are true the manner and correct on and as within the time period required by Rule 424(b); to the knowledge of such date with the same effect as if made on such date and the Transaction Entities has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date;
(ii) counsel, no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and issued, no proceedings for that purpose have been instituted or, to or threatened;
(ii) based solely on its review of a certificate from the knowledge Secretary of State of the Transaction EntitiesState of Delaware, threatened; andthe Company is validly existing and in good standing under the laws of the State of Delaware;
(iii) since the date of Company has the most recent financial statements included or incorporated by reference in corporate power and authority under the Disclosure Package, there has been no Material Adverse Effect, except DGCL to conduct its business as set forth in or contemplated described in the Disclosure Package and the Prospectus;
(iv) the Company has the corporate power and authority to execute and deliver the Agreement and to consummate the transactions contemplated thereby under the DGCL;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) neither the execution and delivery by the Company of this Agreement nor the consummation of the transactions contemplated hereby, including the issuance and sale of the Shares: (A) conflicts with its charter or by-laws or (B) constitutes a violation of, or a default under, any of the agreements that are listed on a schedule to such opinion;
(vii) neither the execution and delivery by the Company of this Agreement nor the consummation by the Company of the transactions contemplated hereby, including the issuance and sale of the Shares: (A) violates any law, rule or regulation of the State of New York or the United States of America, or the DGCL, provided that no opinion shall be expressed as to federal or state securities laws other than as set forth in paragraph (i) above or (B) requires the consent, approval, licensing or authorization of, or any filing, recording or registration with, any governmental authority under any law, rule or regulation of the State of New York or the United States of America, or the DGCL, except for those consents, approvals, licenses and authorizations already obtained and those filings, recordings and registrations already made or as may be required under federal or state securities or Blue Sky laws as to which we express no opinion;
(viii) the Company is not and, solely after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the Disclosure Package, will not be an “investment company” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) the Shares conform to the description thereof contained in the Disclosure Package and the Prospectus under the caption “Description of Capital Stock”; and
(x) the Company’s authorized equity capitalization is as set forth in the Disclosure Package and the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Shares have been duly and validly authorized, and, when issued and delivered to and paid for by the Manager pursuant to this Agreement and any Terms Agreement, will be fully paid and nonassessable; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares; and In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Manager and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in paragraph (b) and this paragraph (c) shall also include any supplements thereto at the Settlement Date.
(gd) The Company shall have requested and caused Xxxxxx Xxxxx, general counsel of the Accountants Company to have furnished furnish to the Manager, on every date specified in Section 4(p4(l) hereof and to the extent requested by the Manager in connection with any offering of the Sharesthis Agreement, letters (which may refer to letters previously delivered to the Manager)her opinion, dated as of such date, in form date and substance satisfactory addressed to the Manager, which letters shall cover, without limitation, to the various financial statements and disclosures contained or incorporated by reference effect that:
(i) based solely on her review of the copies of certificates from public officials in the Registration Statementstate of incorporation or formation of each subsidiary of the Company listed on a schedule to her opinion, each such subsidiary is a corporation or limited liability company validly existing and in good standing under the Disclosure Package and laws of the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634)state of its incorporation or formation, as well as confirming that they have performed applicable, listed opposite its name on such schedule; to her knowledge, there are no legal or governmental proceedings pending to which the Company is a review party or to which any of any unaudited interim financial information it property is subject, of the Transaction Entities included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards Xx. 000 (XX 000X). References a character required to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letter.
(h) Since the respective dates as of which information is be disclosed in the Registration Statement, the Disclosure Package and Statement which is not adequately disclosed in the Prospectus, except and there is no franchise, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or to be filed as otherwise stated thereinan exhibit thereto, there which is not described or filed as required; and
(ii) based solely on her review of the copies of certificates from public officials in each state in which the Company is required to qualify as a foreign corporation, the Company is duly qualified as a foreign corporation to transact business and is in good standing in each such state.
(e) The Company shall not have been requested and caused Xxxxxx Xxxxx, general counsel of the Company, with respect to state regulatory matters, to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, her opinion, dated as of such date and addressed to the Manager, to the effect that:
(i) any change or decrease specified in the letter or letters referred to in Section 6(g) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties each of the Company and its subsidiaries taken validly holds all Authorizations necessary or required under Applicable Laws for the Company and its subsidiaries to conduct their business as currently conducted and as proposed to be conducted, including the incumbent local exchange services, competitive local exchange services, long distance service, dial-up and DSL internet access and other communication services provided by the Company and its subsidiaries (the “Company Authorizations”) except where the absence of such Company Authorizations will not have a wholeMaterial Adverse Effect on the Company; except as would not be material to the Company, whether or the Company Authorizations are in full force and effect and I have no reason to believe that the Company Authorizations will not arising from transactions be renewed in the ordinary course course. As used herein, (1) “Authorization” means any certificate, concession, cable and other franchise, consent, exemption, order, permit, license, authorization or other approval of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus from a Governmental Authority; (exclusive of 2) “Applicable Law” means any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Managerstatutes, so material rules, regulations, policies, orders, court or administrative agency decisions and adverse as to make it impractical interpretations, or inadvisable to proceed with other laws of a Governmental Authority, including, without limitation, communications and environmental laws and regulations, provided that “Applicable Law” shall not include any federal or state securities laws or tax laws; and (3) “Governmental Authority” means all applicable state, local and other governmental authorities (including the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment Public Utility Commission thereof), the Disclosure Package all self-regulatory governmental organizations, all cable franchising authorities and the Prospectus (exclusive of any amendment or supplement thereto).
(i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein all courts and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(j) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease other tribunals in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any states listed on a schedule to such rating or of a possible change in any such rating opinion that does not indicate the direction of the possible change.
(k) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(l) The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager.
(m) Prior to each Settlement Date, the Transaction Entities shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date by the Manager. Notice of such cancellation shall be given to jurisdiction over the Company in writing or by facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Procter LLP, counsel for the Manager, at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, on each such date as provided in this Agreement.and its subsidiaries;
Appears in 1 contract
Samples: Equity Distribution Agreement (Windstream Holdings, Inc.)
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time and Settlement Dateof Delivery, (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement, if any, Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa3(a) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused the Company Counsel to furnish to the Manager, on each Representation Dateevery date specified in Section 4 of this Agreement, its opinionopinion and negative assurance statement, dated as of such date and addressed to the Manager, Manager in substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2.A.
(c) The Company shall have requested and caused Maryland CounselIn rendering such opinions, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to furnish the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Manager and (B) as to matters of fact, to the Managerextent they deem proper, on each Representation Date, its opinion, dated as certificates of such date responsible officers of the Company and addressed public officials. References to the Manager, substantially Prospectus in this paragraph (c) shall also include any supplements thereto at the form attached hereto as Exhibit B.Settlement Date.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager shall have received from Xxxxxxx Procter LLP, counsel for the Manager, on each Representation Date, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4 of this Agreement, a certificate of the Company, signed by the Chairman of the Board, Chief Executive Officer, Officer or the President or General Counsel, and the principal financial or accounting officer of the Company, dated as of such date, to the effect that the signer signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Transaction Entities Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities 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 date;
(ii) to his knowledge, no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Transaction EntitiesCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package, there has been no Material Adverse EffectEffect on the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus.
(ge) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p) 4 hereof and to the extent requested by the Manager and upon reasonable advance notice in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, which letters shall cover, without limitation, confirming that they are independent accountants within the various financial statements and disclosures contained or incorporated by reference in meaning of the Registration Statement, the Disclosure Package Act and the Prospectus Exchange Act and other matters ordinarily covered the respective applicable rules and regulations adopted by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634), as well as confirming Commission thereunder and that they have performed a review of any unaudited interim financial information of the Transaction Entities Company and included or incorporated by reference in the Registration Statement, the Disclosure Package Statement and the Prospectus in accordance with Statement on Auditing Standards XxNo. 000 100, and stating in effect that:
(XX 000X)i) in their opinion the audited financial statements and financial statement schedules and pro forma financial statements included or incorporated by reference in the Registration Statement and the Prospectus and reported on by them comply as to form with the applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and their respective subsidiaries, their limited review, in accordance with standards established under Statement on Auditing Standards No. References 100, of the unaudited interim financial information for the most recently reported quarter, carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and committees of the Company and their respective subsidiaries, and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and their respective subsidiaries as to transactions and events subsequent to the end of such quarter, nothing came to their attention which caused them to believe that:
1. any unaudited financial statements included or incorporated by reference in the Registration Statement and the Prospectus do not comply as to form with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or incorporated by reference in this paragraph (g) include Quarterly Reports on Form 10-Q under the Exchange Act; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by reference in the Registration Statement and the Prospectus;
2. with respect to the period subsequent to the most recently reported quarter, there were any supplement thereto changes, at a specified date not more than five days prior to the date of the letter, in the long-term debt of the Company and their respective subsidiaries or capital stock of the Company or decreases in the stockholders’ equity of the Company as compared with the amounts shown on such consolidated balance sheets included or incorporated by reference in the Registration Statement and the Prospectus, or for the period from the end of such period to such specified date there were any decreases, as compared with the corresponding period in the preceding year, in net revenues or income before income taxes or in total or per share amounts of net income of the Company and their respective subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Manager; or
3. the information included or incorporated by reference in the Registration Statement and the Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), Item 302 (Supplementary Financial Information), Item 402 (Executive Compensation) and Item 503(d) (Ratio of Earnings to Fixed Charges) is not in conformity with the applicable disclosure requirements of Regulation S-K; and
(iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth or incorporated by reference in the Registration Statement and the Prospectus and in Exhibit 12 to the Registration Statement, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation.
(hf) The Company shall have requested and caused its Chief Financial Officer to have furnished to the Manager, on every date specified in Section 4 hereof and to the extent requested by the Manager in connection with any offering of the Shares, a certificate as to certain financial information included in the Disclosure Package and the Prospectus, in form and substance reasonably satisfactory to the Manager.
(g) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (d) of this Section 6(g) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(ih) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(ji) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) FINRA The Financial Industry Regulatory Authority shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(lj) The Shares shall have been listed and admitted and authorized for trading on the NYSETrading Market, and satisfactory evidence of such actions shall have been provided to the Manager.
(mk) Prior to each Settlement DateDate and Time of Delivery, as applicable, the Transaction Entities Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Procter Xxxxxxxxx Xxxxx LLP, counsel for the Manager, at 00 000 Xxxxxxxxx Xxx., Xxxxx Xxxxxx0000, XxxxxxXxx Xxxx, Xxxxxxxxxxxxx XX 00000, on each such date as provided in this Agreement.
Appears in 1 contract
Samples: Continuous Offering Program Agreement (Oculus Innovative Sciences, Inc.)
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement with respect to a Placement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time and Settlement DateTime of Delivery, (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any Any supplement thereto, to the Prospectus required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b); each Interim Prospectus Supplement, if any, shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa) with respect to any sale of this AgreementShares; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused the Company Counsel Counsel, to furnish to the Manager, on each Representation Datethe dates specified in Section 4(l)(i) of this Agreement, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished and substance reasonably satisfactory to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2.
(c) The Company shall have requested and caused Maryland CounselXxxxxx, Xxxx & Xxxxxx LLP, intellectual property counsel for the Company, to furnish to the Manager, on each Representation Datethe dates specified in Section 4(l)(ii) of this Agreement, its opinion, dated as of such date and addressed to the Manager, substantially in form and substance reasonably satisfactory to the form attached hereto as Exhibit B.Manager.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager shall have received from Xxxxxxx Procter Xxxxxx LLP, counsel for the Manager, on each Representation Datedate which the delivery of the Company Counsel legal opinion is required pursuant to Section 4(l)(i) of this Agreement, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(fe) The Company shall have furnished or caused to be furnished to the Manager, on each Representation Datethe dates specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chairman of the Board, the President, the Chief Executive Officer, President Officer or General Counsel, and the principal financial or principal accounting officer of the Company, dated as of such date, to the effect that the signer of such certificate have has carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Transaction Entities Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities 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 date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Transaction EntitiesCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package, there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus.
(gf) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p4(m) hereof, the Comfort Letter that is required to be delivered pursuant to Section 4(m) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance reasonably satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634), as well as confirming that they have performed a review of any unaudited interim financial information of the Transaction Entities included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards Xx. 000 (XX 000X). References to the Prospectus in this paragraph ,
(g) include any supplement thereto at the date of the letter.
(h) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease in financial statement items specified in the letter or letters referred to in paragraph (f) of this Section 6(g) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) Package, the effect of whichwhich is, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of market the Shares as on the terms and in the manner contemplated by the Registration Statement (exclusive of any amendment thereof), in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto)Prospectus.
(ih) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus or prospectus supplement filed pursuant to Rule 424(b).
(ji) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(kj) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(lk) The Shares shall have been listed and admitted and authorized for trading on the NYSENasdaq, and satisfactory evidence of such actions shall have been provided to the Manager.
(ml) Prior to each Settlement DateDate and Time of Delivery, as applicable, the Transaction Entities Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by facsimile telephone or electronic mail and confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Procter Xxxxxx LLP, counsel for the Manager, at 00 Xxxxx Xxxxxx0000 Xxxxxx xx xxx Xxxxxxxx, XxxxxxXxx Xxxx, Xxxxxxxxxxxxx Xxx Xxxx 00000, on each such date as provided in this Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (Apellis Pharmaceuticals, Inc.)
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time and Settlement Dateof Delivery, (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement, if anyas applicable, shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa4(x) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused the Company Counsel to furnish to the Manager, on each Representation Dateevery date specified in Section 4(l) of this Agreement, its opinion, their opinions and negative assurance letter dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished and substance satisfactory to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2.
(c) The Company shall have requested and caused Maryland Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager shall have received from Xxxxxxx Procter LLP, counsel for the Manager’s Counsel, on each Representation Dateevery date specified in Section 4(m) of this Agreement, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(fd) The Company shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chairman of the Board, Chief Executive Officer, President or General Counsel, and the principal financial or accounting officer Chief Financial Officer of the Company, dated as of such date, to the effect that the signer of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Transaction Entities Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities 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 date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Transaction EntitiesCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package, there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus.
(ge) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p4(n) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, which letters shall cover, without limitation, the various financial containing statements and disclosures contained or incorporated by reference information of the type ordinarily included in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in respect to the Statement on Auditing Standards No. 72 (AU 634), as well as confirming that they have performed a review of any unaudited interim financial statements and certain financial information of the Transaction Entities included or incorporated by reference in the Registration Statement, the Prospectus and the Disclosure Package and the Prospectus and, in accordance each case, with Statement on Auditing Standards Xx. 000 (XX 000X). References a “cut-off date” no more than three days prior to the Prospectus in this paragraph (g) include any supplement thereto at the date of the such letter.
(hf) If applicable, the Company shall have furnished to the Manager, on every date specified in Section 4(o) hereof and to the extent requested by the Manager in connection with any offering of the Shares, a certificate of the Chief Financial Officer of the Company, dated as of such date, in form and substance satisfactory to the Manager, providing “management comfort” with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Prospectus and the Disclosure Package.
(g) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6(g) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(ih) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(j) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ki) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(lj) The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager, to the extent this Agreement and the transactions contemplated hereunder require the filing of a Supplemental Listing Application with the NYSE.
(mk) Prior to each Settlement DateDate and Time of Delivery, as applicable, the Transaction Entities Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Procter Xxxxxxx & Xxxxxxxx LLP, counsel for the Manager, at 00 Xxxxx 000 Xxxxxxxxx Xxxxxx, XxxxxxXxx Xxxx, Xxxxxxxxxxxxx 00000, XX 00000 on each such date as provided in this Agreement.
Appears in 1 contract
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time and Settlement Dateof Delivery, (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement, if any, Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa4(q) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the Act shall have been instituted or threatened.
(b) The Company shall have requested and caused the Company Counsel and Intellectual Property Counsel to furnish to the Manager, on each Representation Dateevery date specified in Section 4(l) of this Agreement, its opinion, dated as of such date opinions in form and addressed substance satisfactory to the Manager, substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2manager.
(c) The Company shall have requested and caused Maryland Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager shall have received from Xxxxxx & Xxxxxxx Procter LLP, counsel for the Manager, on each Representation Dateevery date specified in Section 4(m) of this Agreement, such opinion or opinionsopinions and disclosure letter or letters, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(fd) The Company shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chairman chief executive officer or the President of the Board, Chief Executive Officer, President or General CounselCompany, and of the principal chief financial or chief accounting officer of the Company, dated as of such date, to the effect that the signer signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Transaction Entities in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities 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 date;
(ii) received no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued Statement, and no proceedings for that such purpose or pursuant to Section 8A of the Act have been instituted or, to the knowledge of Company’s knowledge, threatened by the Transaction Entities, threatened; andCommission;
(iiiii) since the date of the most recent financial statements included or incorporated by reference in the Prospectus and the Disclosure Package, there has been no event or condition of a type described in Section 2(l) hereof (a “Material Adverse EffectChange”), except as set forth in or contemplated in the Disclosure Package and the Prospectus;
(iii) the representations, warranties and covenants set forth in Section 2 of this Agreement are true and correct with the same force and effect as though expressly made on and as of such date; and
(iv) the Company and its subsidiaries have complied with all the agreements hereunder and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such date.
(ge) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p4(n) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634)72, as well as confirming that they have performed a review of any unaudited interim financial information of the Transaction Entities Company included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards XxNo. 000 (XX 000X)100. References to the Prospectus in this paragraph (ge) include any supplement thereto at the date of the letter.
(hf) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(o) of this Agreement, a certificate of the chief financial officer of the Company, dated as of such date, in form and substance to the Manager and agreed upon prior to the date hereof, covering certain financial matters of the Company.
(g) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6(g) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of businessMaterial Adverse Change, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(j) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(kh) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(li) The Nasdaq shall not have objected to the listing of the Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the ManagerNasdaq.
(mj) Prior to each Settlement DateDate and Time of Delivery, as applicable, the Transaction Entities Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager Managers and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the ManagerManager with respect to itself only. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxx & Xxxxxxx Procter LLP, counsel for the Manager, at 00 000 Xxxxx XxxxxxXxxxx, XxxxxxMenlo Park, Xxxxxxxxxxxxx 00000CA 94025, on each such date as provided in this Agreement.
Appears in 1 contract
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time and Settlement Dateof Delivery, (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) 6.1 The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b); each Interim Prospectus Supplement, if any, shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa) with respect to any sale of this AgreementShares; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or or, to the knowledge of the Company, threatened.
(b) 6.2 The Company shall have requested furnished or caused to be furnished the opinions and caused the Company Counsel to furnish to the Managerletters from its counsel and accountants as set forth in Section 4, on each Representation Date, its opinion, dated the dates as of such date and addressed to the Manager, substantially set forth in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2Section 4.
(c) The Company shall have requested and caused Maryland Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) 6.3 The Manager shall have received from Xxxxxxx Procter LLPXxxxxx & Xxxxxx L.L.P., counsel for the Manager, an opinion as set forth in Section 4.21, on each Representation Date, such opinion or opinions, dated the dates as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably requireset forth in Section 4, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(f) 6.4 The Company shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4.11 of this Agreement, a certificate of the Company, signed by the Chairman of the Board, Chief Executive Officer, President its principal executive officer or General Counsel, and the principal financial or accounting officer of the Company, dated as of such date, to the effect that the signer of such certificate have has carefully examined the Registration Statement, the Disclosure Package Statement and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(ia) the representations and warranties of the Transaction Entities Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities 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 date;
(iib) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued by the Commission and no proceedings for that purpose have been instituted or, to the knowledge of the Transaction Entitiessuch officer’s knowledge, threatened; and;
(iiic) since the date of the most recent financial statements included or incorporated by reference in the Disclosure PackageProspectus, there has been no Material Adverse Effectmaterial adverse effect on the general affairs, except as set forth in or contemplated in the Disclosure Package and the Prospectus.
(g) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634), as well as confirming that they have performed a review of any unaudited interim financial information of the Transaction Entities included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards Xx. 000 (XX 000X). References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letter.
(h) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in Section 6(g) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earningsresults of operations, business business, properties, assets or properties prospects of the Company and its subsidiaries Teekay Entities, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and Prospectus, as amended or supplemented; and
d) on those Representation Dates when the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case opinions referred to in clause Section 4.15 through Section 4.19 are not provided, that, to such officer’s knowledge, there has not been any material change in the facts on which the opinions in Section 4.15 through Section 4.19 are based.
6.5 The Company shall have requested and caused KPMG LLP to have furnished to the Manager, on every date specified in Section 4.21 hereof and to the extent reasonably requested by the Manager in connection with any offering of the Shares a comfort letter, dated respectively as of such date, in form and substance reasonably satisfactory to the Manager.
6.6 Subsequent to the respective dates as of which information is disclosed in the Registration Statement and the Prospectus, except as otherwise stated therein, there shall not have been (i) any adverse change or decrease specified in the letter referred to in Section 6.5 or (ii) aboveany adverse change, isor any development involving a prospective adverse change that would reasonably be expected to have a Material Adverse Effect, which, in the sole judgment of Manager’s opinion, would materially and adversely affect the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto)market for Shares.
(i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(j) 6.7 Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) 6.8 FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(l) 6.9 The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager.
(m) 6.10 Prior to each Settlement DateDate and Time of Delivery, as applicable, the Transaction Entities Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at to the office of Xxxxxxx Procter LLPXxxxxx & Xxxxxx L.L.P., counsel for the Manager, at 00 0000 Xxxxxxxxxxxx Xxx. XX, Xxxxx Xxxxxx000 Xxxx, XxxxxxXxxxxxxxxx, Xxxxxxxxxxxxx XX 00000, or electronically to Xxxxxx & Xxxxxx L.L.P. at an address provided by it to the Company or its counsel, on each such date as provided in this Agreement.
Appears in 1 contract
Conditions to the Obligations of the Manager. The obligations of the Manager Managers under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time and Settlement Dateof Delivery, (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement, if anyas applicable, shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa4(x) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused the Company Counsel and In-House Counsel, to furnish to the Managersuch Managers, on each Representation Dateevery date specified in Section 4(l) of this Agreement, its opiniontheir opinions and negative assurance letter, as applicable, dated as of such date and addressed to the Managersuch Managers, substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished and substance satisfactory to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2Managers.
(c) The Company shall have requested and caused Maryland Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager Such Managers shall have received from Xxxxxxx Procter LLP, counsel for the ManagerManagers’ Counsel, on each Representation Dateevery date specified in Section 4(m) of this Agreement, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably requiresuch Managers, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(fd) The Company shall have furnished or caused to be furnished to the Managersuch Managers, on each Representation Dateevery date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chairman of the Board, Chief Executive Officer, President or General Counsel, and the principal financial or accounting officer Chief Financial Officer of the Company, dated as of such date, to the effect that the signer of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Transaction Entities Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities 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 date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Transaction EntitiesCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package, there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus.
(ge) The Company shall have requested and caused the Accountants to have furnished to the Managersuch Managers, on every date specified in Section 4(p4(n) hereof and to the extent requested by the Manager such Managers in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the ManagerManagers), dated as of such date, in form and substance satisfactory to the Managersuch Managers, which letters shall cover, without limitation, the various financial containing statements and disclosures contained or incorporated by reference information of the type ordinarily included in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in respect to the Statement on Auditing Standards No. 72 (AU 634), as well as confirming that they have performed a review of any unaudited interim financial statements and certain financial information of the Transaction Entities included or incorporated by reference in the Registration Statement, the Disclosure Package Prospectus and the Prospectus in accordance with Statement on Auditing Standards Xx. 000 (XX 000X). References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letterDisclosure Package.
(hf) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6(g) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Managersuch Managers, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(ig) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(j) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(kh) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(li) The Shares shall have been listed and admitted and authorized for trading on the NYSENasdaq, and satisfactory evidence of such actions shall have been provided to such Managers, to the Managerextent this Agreement and the transactions contemplated hereunder require the filing of a Listing of Additional Shares Notification form with Nasdaq.
(mj) Prior to each Settlement DateDate and Time of Delivery, as applicable, the Transaction Entities Company shall have furnished to the Manager such Managers such further information, certificates and documents as the Manager such Managers may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager Managers and counsel for the ManagerManagers, this Agreement and all obligations of the applicable Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Managersuch Manager with respect to itself only. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. Following any such cancellation by a Manager, this Agreement shall remain in effect as to the other Manager that has not exercised its right to cancel this Agreement pursuant to this Section 6 and any obligations and rights of the Managers under this Agreement shall be satisfied by or afforded to only such other Manager. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Procter Milbank LLP, counsel for the ManagerManagers, at 00 Xxxxx Xxxxxx50 Xxxxxx Xxxxx, XxxxxxNew York, Xxxxxxxxxxxxx 00000, New York 10001 on each such date as provided in this Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (United Airlines, Inc.)
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time and Settlement Date, (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement, if any, Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa4(t) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the Act shall have been instituted or threatenedor, to the knowledge of the Company, be threatened by the Commission.
(b) The Company shall have requested and caused the Company Counsel to furnish to the Manager, on each Representation Dateevery date specified in Section 4(l) of this Agreement subject to Section 4(r), its opinion, dated as of such date a written opinion and addressed disclosure letter in form and substance reasonably satisfactory to the Manager, substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2.
(c) The Company shall have requested and caused Maryland Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager shall have received from Xxxxxx, Xxxxx & Xxxxxxx Procter LLP, counsel for the Manager, on each Representation Dateevery date specified in Section 4(m) of this Agreement subject to Section 4(r), such opinion or opinionsopinions and disclosure letter or letters, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(fd) [Reserved.]
(e) The Company shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4(k) of this Agreement subject to Section 4(r), a certificate of the Company, signed by the Chairman of the Board, Chief Executive Officer, President or General Counsel, and the principal financial or accounting an executive officer of the Company, dated as of such date, to the effect that the signer xxxxxx of such certificate have has carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Transaction Entities in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities 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 date;
(ii) received no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued Statement, and no proceedings for that such purpose or pursuant to Section 8A of the Act have been instituted or, to the knowledge of Company’s knowledge, are threatened by the Transaction Entities, threatened; andCommission;
(iiiii) since the date of the most recent financial statements included or incorporated by reference in the Prospectus and the Disclosure Package, there has been no event or condition of a type described in Section 2(k) hereof (a “Material Adverse EffectChange”), except as set forth in or contemplated in the Disclosure Package and the Prospectus;
(iii) the representations, warranties and covenants set forth in Section 2 of this Agreement are true and correct with the same force and effect as though expressly made on and as of such date; and
(iv) except as waived by the Agent in writing, the Company has complied with all the agreements hereunder and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such date.
(gf) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p4(o) hereof and to the extent requested by the Manager in connection with any offering of the Shareshereof, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance reasonably satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634)AS 6101, as well as confirming that they have performed a review of any unaudited interim financial information of the Transaction Entities Company included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards Xx. 000 (XX 000X)AS 4105. References to the Prospectus in this paragraph (gf) include any supplement thereto at the date of the such comfort letter.
(hg) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein or in subsequent reports filed with the Commission and incorporated by reference therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in Section 6(g) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of businessMaterial Adverse Change, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, which is, in the sole reasonable judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package this Agreement and the Prospectus (exclusive of any amendment or supplement thereto)Prospectus.
(i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(j) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(kh) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(li) The Shares shall have been listed and admitted and authorized for trading on the NYSEExchange, and satisfactory evidence of such actions shall have been provided to the Manager.
(mj) Prior The Company shall have furnished or caused to be furnished to the Manager, if requested by the Manager, in connection with each Settlement Representation Date on which the Company is required to provide a certificate under section Section 4(k) of this Agreement, a certificate of the Company, signed by the chief financial officer or similar officer of the Company, dated as of such date, in form and substance satisfactory to the Manager and the Company, providing “management comfort” with respect to certain financial information included in the Registration Statement and the Prospectus, as applicable, to the extent such financial information is not covered by an accountants’ “comfort letter” delivered as of such date pursuant to Section 6(f) of this Agreement.
(k) In connection with each Representation Date, the Transaction Entities Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably requestrequest and which are usually and customarily furnished by an issuer of securities in connection with a securities offering of the type contemplated hereby. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date Date, by the Manager, subject to Section 8 hereof. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of to Xxxxxx, Xxxxx & Xxxxxxx Procter LLP, counsel for the Manager, at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, on each such date as provided in this Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (Global Ship Lease, Inc.)
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Partnership contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time and Settlement Dateof Delivery, (ii) to the performance by each of the Transaction Entities Partnership of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Offered Units; each Interim Prospectus Supplement, if any, Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa3(a)(ix) of this Agreement; any other material required to be filed by the Company Partnership pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Partnership shall have requested and caused the Company Counsel Xxxxx Xxxxx, to furnish to the Manager, on each Representation Dateevery date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, in substantially in the form attached hereto as set forth in Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2A hereto.
(c) The Company Partnership shall have requested and caused Maryland CounselGableGotwals, to furnish to the Manager, on each Representation Dateevery date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, in substantially in the form attached hereto as set forth in Exhibit B.B hereto.
(d) The Company Partnership shall have requested and caused Tax CounselXxxxxxx Xxxxx, to furnish to the Manager, on each Representation Dateevery date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, in substantially in the form attached hereto as set forth in Exhibit C.C hereto.
(e) The Manager shall have received from Xxxxxxx Procter LLPShearman & Sterling, counsel for the Manager, on each Representation Dateevery date specified in Section 4(m) of this Agreement, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the SharesOffered Units, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company Partnership shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(f) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any adverse change, or any development involving a prospective adverse change, in or affecting the business, properties, earnings, results of operations or financial condition of the Partnership and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Offered Units as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(g) The Company Partnership shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4(k) of this Agreement, a certificate of the CompanyPartnership, signed by the Chairman of the Board, Board and Chief Executive Officer, Officer or the President or General Counsel, and the principal financial or accounting officer of the CompanyGeneral Partner of the Partnership, dated as of such date, to the effect that the signer signers of such certificate have carefully examined reviewed the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Transaction Entities Partnership in Section 1 of this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Transaction EntitiesPartnership’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package, there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus.
(gh) The Company Partnership shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p4(n) hereof and to the extent requested by the Manager in connection with any offering of the Shareshereof, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, which letters shall cover, without limitation, the various cover certain financial statements and disclosures financial information contained or incorporated by reference in the Registration Statement, the Disclosure Package and Interim Prospectus Supplements, the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634)Permitted Free Writing Prospectuses, as well as confirming that they have performed a review of any unaudited interim financial information of the Transaction Entities included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards Xx. 000 (XX 000X). References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letter.
(h) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in Section 6(g) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto)if any.
(i) The Company Partnership shall have paid the required Commission filing fees relating to the Shares Offered Units within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(j) Between the Execution Time and the time of any sale of Shares Offered Units through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as such term is defined for purposes in Section 3(a)(62) of Rule 436(g) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(l) The Shares Offered Units shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager.
(m) Prior to each Settlement DateDate and Time of Delivery, as applicable, the Transaction Entities Partnership shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company Partnership in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Procter LLPShearman & Sterling, counsel for the Manager, at 00 Xxxxx 000 Xxxxxxxxx Xxxxxx, XxxxxxXxx Xxxx, Xxxxxxxxxxxxx XX 00000, on each such date as provided in this Agreement.
Appears in 1 contract
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time and Settlement Dateof Delivery, (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement, if any, Supplement required to be filed shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa4(q) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the Act shall have been instituted or threatened.
(b) The Company shall have requested and caused the Company Counsel to furnish to the Manager, on each Representation Dateevery date specified in Section 4(l) of this Agreement, its opinion, dated as of such date opinions and addressed disclosure letters in form and substance reasonably satisfactory to the Manager, substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2.
(c) The Company shall have requested and caused Maryland Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager shall have received from Xxxxxxx Procter Ropes & Gray LLP, counsel for the Manager, on each Representation Dateevery date specified in Section 4(m) of this Agreement, such opinion or opinionsopinions and disclosure letter or letters, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(fd) The Company shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chairman of chief executive officer or the Board, Chief Executive Officer, President or General Counsel, and the principal financial or accounting officer of the Company, dated as of such date, to the effect that the signer of such certificate have has carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Transaction Entities in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities 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 date;
(ii) received no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued Statement, and no proceedings for that such purpose or pursuant to Section 8A of the Act have been instituted or, to the knowledge of Company’s knowledge, threatened by the Transaction Entities, threatened; andCommission;
(iiiii) since the date of the most recent financial statements included or incorporated by reference in the Prospectus and the Disclosure Package, there has been no event or condition of a type described in Section 2(l) hereof (a “Material Adverse EffectChange”), except as set forth in or contemplated in the Disclosure Package and the Prospectus;
(iii) the representations, warranties and covenants set forth in Section 2 of this Agreement are true and correct with the same force and effect as though expressly made on and as of such date; and
(iv) the Company and its subsidiaries have complied in all material respects with all the agreements hereunder and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such date.
(ge) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p4(n) hereof to the extent financial information audited or reviewed by such firm is included or incorporated by reference on the Registration Statement, the Disclosure Package and the Prospectus, as amended and supplemented to the date of such letter, and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance reasonably satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 6101, as published by the Public Company Accounting Oversight Board (AU 634“PCAOB”), as well as confirming that they have performed a review of any unaudited interim financial information of the Transaction Entities Company included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards Xx. 000 (XX 000X)4105, Reviews of Interim Financial Information, as published by the PCAOB. References to the Prospectus in this paragraph (ge) include any supplement thereto at the date of the letter.
(hf) The Manager shall have received a certificate of the Chief Financial Officer, on every date specified in Section 4(o) hereof, in form and substance reasonably satisfactory to the Manager, with respect to certain financial information included or incorporated by reference on the Registration Statement, the Disclosure Package and the Prospectus, as amended and supplemented to the date of such certificate.
(g) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6(g) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of businessMaterial Adverse Change, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(j) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(kh) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(li) The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager.
(mj) Prior to each Settlement DateDate and Time of Delivery, as applicable, the Transaction Entities Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the ManagerManager with respect to itself only. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Procter electronically to Ropes & Gray LLP, counsel for the Manager, at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, on each such date as provided in this Agreement.
Appears in 1 contract
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time and Settlement Dateof Delivery, (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) 6.1 The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission shall have been filed in the manner and within the time period required by Rule 424(b); each Interim Prospectus Supplement, if any, shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa) with respect to any sale of this AgreementShares; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or or, to the knowledge of the Company, threatened.
(b) 6.2 The Company shall have requested furnished or caused to be furnished the opinions and caused the Company Counsel to furnish to the Managerletters from its counsel and accountants as set forth in Section 4, on each Representation Date, its opinion, dated the dates as of such date and addressed to the Manager, substantially set forth in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2Section 4.
(c) The Company shall have requested and caused Maryland Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) 6.3 The Manager shall have received from Xxxxxx, Xxxxx & Xxxxxxx Procter LLP, counsel for the Manager, an opinion as set forth in Section 4, on each Representation Date, such opinion or opinions, dated the dates as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably requireset forth in Section 4, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(f) The 6.4 Each of the Manager and the Company shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4.13 of this Agreement, a certificate of the Company, signed by the Chairman of the Board, Chief Executive Officer, President or General Counsel, its principal executive officer and the principal financial or accounting officer of the Company, dated as of such date, to the effect that the signer of such certificate have has carefully examined the Registration Statement, the Disclosure Package Statement and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(ia) the representations and warranties of the Transaction Entities Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities 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 date;
(iib) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued by the Commission and no proceedings for that purpose have been instituted or, to the knowledge of the Transaction Entitiessuch officer's knowledge, threatened; and
(iiic) since the date of the most recent financial statements included or incorporated by reference in the Disclosure PackageProspectus, there has been no Material Adverse Effectmaterial adverse effect on the general affairs, except as set forth in or contemplated in the Disclosure Package and the Prospectus.
(g) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634), as well as confirming that they have performed a review of any unaudited interim financial information of the Transaction Entities included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards Xx. 000 (XX 000X). References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letter.
(h) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in Section 6(g) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earningsresults of operations, business business, properties, assets or properties prospects of the Company and its subsidiaries subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) 6.5 The Company shall have paid the required Commission filing fees relating requested and caused Deloitte to have furnished to the Shares within Manager, on every date specified in Section 4.18 hereof and to the time period required extent reasonably requested by Rule 456(b)(1)(i) the Manager in connection with any offering of the Securities Act without regard Shares, comfort letters, dated respectively as of such date, in form and substance reasonably satisfactory to the proviso therein and otherwise Manager.
6.6 Subsequent to the respective dates as of which information is disclosed in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement and the Prospectus, except as otherwise stated therein, there shall not have been any adverse change, or on any development involving a prospective adverse change that would reasonably be expected to have a Material Adverse Effect, which, in the cover page of a prospectus filed pursuant to Rule 424(b)Manager's opinion, would materially and adversely affect the market for Shares.
(j) Between 6.7 Since the Execution Time and date of the time of any sale of Shares through most recent financial statements included in the ManagerProspectus, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities of the Company by any “"nationally recognized statistical rating organization” " (as defined for purposes in Section 3(a)(62) of Rule 436(g) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) 6.8 FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(l) 6.9 The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager.
(m) 6.10 Prior to each Settlement DateDate and Time of Delivery, as applicable, the Transaction Entities Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at to the office of Xxxxxx, Xxxxx & Xxxxxxx Procter LLP, counsel for the Manager, at 00 Xxxxx 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000, or electronically to Xxxxxx, Xxxxxxxxxxxxx 00000Xxxxx & Bockius at an address provided by it to the Company or its counsel, on each such date as provided in this Agreement.
Appears in 1 contract
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time and Settlement Dateof Delivery, (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of AMC Preferred Equity Units; each Interim Prospectus Supplement, if any, shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa3(a)(ix) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused the Company Counsel to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2.
(c) The Company shall have requested and caused Maryland Counsel, to furnish to the Manager, on each Representation Dateevery date specified in Section 4(l) of this Agreement, its opinion, dated as of such date in form and addressed substance reasonably satisfactory to the Manager and counsel for the Manager, substantially in the form attached hereto as Exhibit B..
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(ec) The Manager shall have received from Xxxxxxx Procter Lxxxxx & Wxxxxxx LLP, counsel for the Manager, on each Representation Dateevery date specified in Section 4(m) of this Agreement, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the SharesAMC Preferred Equity Units, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(fd) The Company shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chairman of the Board, President or Chief Executive Officer, President or General Counsel, Officer and the principal financial or accounting officer of the Company, dated as of such date, to the effect that the signer signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Transaction Entities Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities 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 date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Transaction EntitiesCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package, there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus.
(ge) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p4(n) hereof and to the extent requested by the Manager in connection with any offering of the SharesAMC Preferred Equity Units, letters (which may refer to letters previously delivered to the Manager), dated as of such date, date in form and substance reasonably satisfactory to the Manager, which letters shall cover, without limitation, the various financial Manager containing statements and disclosures contained or incorporated by reference information of the type ordinarily included in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in respect to the Statement on Auditing Standards No. 72 (AU 634), as well as confirming that they have performed a review of any unaudited interim financial statements and certain financial information of the Transaction Entities included or incorporated by reference contained in the Registration Statement, the Disclosure Package Statement and the Prospectus in accordance with Statement on Auditing Standards Xx. 000 (XX 000X). References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letterProspectus.
(hf) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6(g) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) Package, the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares AMC Preferred Equity Units as contemplated by the Registration Statement (exclusive of any amendment thereof)Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto)Prospectus.
(ig) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(o) of this Agreement, a certificate, signed by the Chief Financial Officer of the Company, dated as of such date, providing “management comfort” with respect to certain financial data included or incorporated by reference in the Disclosure Package and the Prospectus.
(h) The Company shall have paid the required Commission filing fees relating to the Shares AMC Preferred Equity Units within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(ji) Between the Execution Time and the time of any sale of Shares AMC Preferred Equity Units through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(kj) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(lk) The Shares AMC Preferred Equity Units shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager.
(ml) Prior to each Settlement DateDate and Time of Delivery, as applicable, the Transaction Entities Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the applicable Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Procter Lxxxxx & Wxxxxxx LLP, counsel for the Manager, at 00 Xxxxx Xxxxxx1000 Xxxxxx xx xxx Xxxxxxxx, XxxxxxXxx Xxxx, Xxxxxxxxxxxxx Xxx Xxxx 00000, on each such date as provided in this Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (Amc Entertainment Holdings, Inc.)
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery (except to the extent such representations and Settlement Datewarranties expressly relate to the specific earlier date (in which case such representations and warranties shall be true and correct as of such specified earlier date)), (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement, if any, Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa4(x) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Xxxxx Xxxx LLP, outside counsel for the Company Counsel Company, to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its letter, dated as of such date and addressed to the Manager, to the effect that the Registration Statement and the Prospectus (other than the financial statements and other financial, accounting and statistical information contained or incorporated by reference in the Registration Statement or the Prospectus, as to which such counsel need not provide negative assurance) comply as to form in all material respects with the applicable requirements of the Act and the Exchange Act and the respective rules thereunder; and such counsel has no reason to believe that on the Effective Date the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus as of its date and as of the date of such letter included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each Representation Datecase, other than the financial statements and other financial or accounting information contained or incorporated by reference in the Registration Statement or the Prospectus, as to which such counsel need not provide negative assurance); such counsel has no reason to believe that the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such letter, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than the financial statements and other financial or accounting information contained or incorporated by reference in the Disclosure Package, as to which such counsel need not provide negative assurance).
(c) The Company shall have requested and caused Xxxxx Xxxx LLP, outside counsel for the Company, to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2.
(c) The Company shall have requested and caused Maryland Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager shall have received from Xxxxxxx Procter LLP, counsel for the Manager, on each Representation Date, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished or caused to be furnished to the Manager, on each Representation Date, a certificate of the Company, signed by the Chairman of the Board, Chief Executive Officer, President or General Counsel, and the principal financial or accounting officer of the Company, dated as of such date, to the effect that the signer of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties Registration Statement has become effective under the Act; any required filing of the Transaction Entities Base Prospectus and the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in this Agreement are true the manner and correct on and as within the time period required by Rule 424(b); to the knowledge of such date with the same effect as if made on such date and the Transaction Entities has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date;
(ii) counsel, no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and issued, no proceedings for that purpose have been instituted or, to or threatened;
(ii) based solely on its review of a certificate from the knowledge Secretary of State of the Transaction EntitiesState of Delaware, threatened; andthe Company is validly existing and in good standing under the laws of the State of Delaware;
(iii) since the date of Company has the most recent financial statements included or incorporated by reference in corporate power and authority under the Disclosure Package, there has been no Material Adverse Effect, except Delaware General Corporation Law (“DGCL”) to conduct its business as set forth in or contemplated described in the Disclosure Package and the Prospectus;
(iv) the Company has the corporate power and authority to execute and deliver the Agreement and to consummate the transactions contemplated thereby under the DGCL;
(v) this Agreement has been duly authorized, executed and delivered by the Company;
(vi) neither the execution and delivery by the Company of this Agreement nor the consummation of the transactions contemplated hereby, including the issuance and sale of the Shares: (A) conflicts with its charter or bylaws or (B) constitutes a violation of, or a default under, any of the agreements that are listed on a schedule to such opinion;
(vii) neither the execution and delivery by the Company of this Agreement nor the consummation by the Company of the transactions contemplated hereby, including the issuance and sale of the Shares: (A) violates any law, rule or regulation of the State of New York or the United States of America, or the DGCL; provided that no opinion shall be expressed as to federal or state securities laws other than as set forth in paragraph (i) above or (B) requires the consent, approval, licensing or authorization of, or any filing, recording or registration with, any governmental authority under any law, rule or regulation of the State of New York or the United States of America, or the DGCL, except for those consents, approvals, licenses and authorizations already obtained and those filings, recordings and registrations already made or as may be required under federal or state securities or Blue Sky laws as to which we express no opinion;
(viii) the Company is not and, solely after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the Disclosure Package, will not be an “investment company” as such term is defined in the Investment Company Act of 1940, as amended;
(ix) the Shares conform to the description thereof contained in the Disclosure Package and the Base Prospectus under the caption “Description of Capital Stock”; and
(x) the Company’s authorized equity capitalization is as set forth in the Disclosure Package and the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Shares have been duly and validly authorized, and, when issued and delivered to and paid for by the Manager pursuant to this Agreement and any Terms Agreement, will be fully paid and nonassessable; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Manager and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in paragraph (b) and this paragraph (c) shall also include any supplements thereto at the Settlement Date.
(gd) The Company shall have requested and caused Xxxxxx Xxxxx, general counsel of the Accountants Company, to have furnished furnish to the Manager, on every date specified in Section 4(p4(l) hereof and to the extent requested by the Manager in connection with any offering of the Sharesthis Agreement, letters (which may refer to letters previously delivered to the Manager)her opinion, dated as of such date, in form date and substance satisfactory addressed to the Manager, which letters shall cover, without limitation, to the various financial statements and disclosures contained or incorporated by reference effect that:
(i) based solely on her review of the copies of certificates from public officials in the Registration Statementstate of incorporation or formation of each subsidiary of the Company listed on a schedule to her opinion, each such subsidiary is a corporation or limited liability company validly existing and in good standing under the Disclosure Package and laws of the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634)state of its incorporation or formation, as well as confirming that they have performed applicable, listed opposite its name on such schedule; to her knowledge, there are no legal or governmental proceedings pending to which the Company is a review party or to which any of any unaudited interim financial information it property is subject, of the Transaction Entities included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards Xx. 000 (XX 000X). References a character required to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letter.
(h) Since the respective dates as of which information is be disclosed in the Registration Statement, the Disclosure Package and Statement which is not adequately disclosed in the Prospectus, except and there is no franchise, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or to be filed as otherwise stated thereinan exhibit thereto, there which is not described or filed as required; and
(ii) based solely on her review of the copies of certificates from public officials in each state in which the Company is required to qualify as a foreign corporation, the Company is duly qualified as a foreign corporation to transact business and is in good standing in each such state.
(e) The Company shall not have been requested and caused Xxxxxx Xxxxx, general counsel of the Company, with respect to state regulatory matters, to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, her opinion, dated as of such date and addressed to the Manager, to the effect that:
(i) any change or decrease specified in the letter or letters referred to in Section 6(g) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties each of the Company and its subsidiaries taken validly holds all Authorizations necessary or required under Applicable Laws for the Company and its subsidiaries to conduct their business as currently conducted and as proposed to be conducted, including the incumbent local exchange services, competitive local exchange services, long distance service, dial-up and DSL internet access and other communication services provided by the Company and its subsidiaries (the “Company Authorizations”) except where the absence of such Company Authorizations will not have a wholeMaterial Adverse Effect on the Company; except as would not be material to the Company, whether or the Company Authorizations are in full force and effect and I have no reason to believe that the Company Authorizations will not arising from transactions be renewed in the ordinary course course. As used herein, (1) “Authorization” means any certificate, concession, cable and other franchise, consent, exemption, order, permit, license, authorization or other approval of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus from a Governmental Authority; (exclusive of 2) “Applicable Law” means any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Managerstatutes, so material rules, regulations, policies, orders, court or administrative agency decisions and adverse as to make it impractical interpretations, or inadvisable to proceed with other laws of a Governmental Authority, including, without limitation, communications and environmental laws and regulations; provided that “Applicable Law” shall not include any federal or state securities laws or tax laws and (3) “Governmental Authority” means all applicable state, local and other governmental authorities (including the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment Public Utility Commission thereof), the Disclosure Package all self-regulatory governmental organizations, all cable franchising authorities and the Prospectus (exclusive of any amendment or supplement thereto).
(i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein all courts and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(j) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease other tribunals in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any states listed on a schedule to such rating or of a possible change in any such rating opinion that does not indicate the direction of the possible change.
(k) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(l) The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager.
(m) Prior to each Settlement Date, the Transaction Entities shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date by the Manager. Notice of such cancellation shall be given to jurisdiction over the Company in writing or by facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Procter LLP, counsel for the Manager, at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, on each such date as provided in this Agreement.and its subsidiaries;
Appears in 1 contract
Samples: Equity Distribution Agreement (Windstream Holdings, Inc.)
Conditions to the Obligations of the Manager. The obligations of the Manager Managers under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time and Settlement Dateof Delivery, (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b); each Interim Prospectus Supplement, if any, shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa) with respect to any sale of this AgreementOffered Units; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused the Company Counsel to furnish to the ManagerManagers, on each Representation Dateevery date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the ManagerManagers, substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2.A.
(c) The Company shall have requested and caused Maryland Counsel, the General Counsel or Senior Counsel of the Company to furnish to the ManagerManagers, on each Representation Dateevery date specified in Section 4(m) of this Agreement, its her opinion, dated as of such date and addressed to the ManagerManagers, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager Managers shall have received from Xxxxxxx Procter Xxxxxxx & Xxxxxxxx LLP, counsel for the ManagerManagers, on each Representation Dateevery date specified in Section 4(n) of this Agreement, such opinion or opinions, dated as of such date and addressed to the ManagerManagers, with respect to the issuance and sale of the SharesOffered Units, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager Managers may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(fe) The Company shall have furnished or caused to be furnished to the ManagerManagers, on each Representation Dateevery date specified in Section 4(k) of this Agreement, a certificate of the Company, Company signed by the Chairman of the Board, its Chief Executive Officer and its Chief Financial Officer, President or General Counsel, and the principal financial or accounting officer of the Company, dated as of such date, to the effect stating that the signer each of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and them severally represents that:
(i) the representations representations, warranties and warranties agreements of the Transaction Entities Company in this Agreement Section 2 are true and correct on and as of such date with the same effect as if made on such date date, and the Transaction Entities Company has complied with all the its agreements contained herein in all material respects and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and issued; no proceedings or examination for that purpose have been instituted or, to the knowledge of the Transaction Entitiessuch officers, threatened; and the Commission has not notified the Company of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto;
(iii) such officer has carefully examined the Registration Statement, the Prospectus and the Disclosure Package, and, in such officer’s opinion, (A)(1) the Registration Statement, as of the most recent Effective Date, (2) the Prospectus, as of its date and on the applicable Settlement Date or Time of Delivery, and (3) the Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the most recent Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth; and
(iiiiv) since the date respective dates as of the most recent financial statements included or incorporated by reference in the Disclosure Package, there has been no Material Adverse Effect, except as set forth in or contemplated which information is given in the Disclosure Package and the Prospectus, there has not been any development that resulted in a Material Adverse Effect or any development that could reasonably be expected to result in a material adverse effect on the condition (financial or otherwise), results of operations, stockholders’ or members’ equity or business of the Company and its Subsidiaries taken as a whole, whether or not arising in the ordinary course of business.
(gf) The Company shall have requested and caused the Accountants to have furnished to the ManagerManagers, on every date specified in Section 4(p4(o) hereof and to the extent requested by the Manager Managers in connection with any offering of the SharesOffered Units, letters (which may refer to letters previously delivered to the ManagerManagers), dated as of such date, in form and substance reasonably satisfactory to the ManagerManagers, (i) confirming that they are independent registered public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S X of the Commission and (ii) stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which letters shall coverspecified financial information is given in the Disclosure Package, without limitationas of a date not more than three days prior to such date), the various conclusions and findings of such firm with respect to the financial statements and disclosures contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated offerings.
(g) The Company shall have requested and caused the Reserve Engineer to have furnished to the Managers, on every date specified in Section 4(p) hereof and to the Statement on Auditing Standards No. 72 extent requested by the Managers in connection with any offering of the Offered Units, letters (AU 634which may refer to letters previously delivered to the Managers), dated as well as confirming that they have performed a review of any unaudited interim financial such date, in form and substance reasonably satisfactory to the Managers, covering certain matters relating to information about the reserves of the Transaction Entities included or incorporated by reference Company presented in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards Xx. 000 (XX 000X). References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letterProspectus.
(h) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6(g) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the ManagerManagers, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares Offered Units as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) The Company shall have paid the required Commission filing fees relating to the Shares Offered Units within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(j) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(k) Between the Execution Time and the time of any sale of Shares Offered Units through the any Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes such term is used in Section 15E of Rule 436(g) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(l) The Shares Offered Units shall have been listed and admitted and authorized for trading on the NYSENasdaq, and satisfactory evidence of such actions shall have been provided to the ManagerManagers.
(m) Prior to each Settlement DateDate and Time of Delivery, as applicable, the Transaction Entities Company shall have furnished to the Manager Managers such further information, certificates and documents as the Manager Managers may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager Managers and counsel for the ManagerManagers, this Agreement and all obligations of the Manager Managers hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the ManagerManagers. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Procter Xxxxxxx & Xxxxxxxx LLP, counsel for the ManagerManagers, at 00 Xxxxx 000 Xxxxxxxxx Xxxxxx, XxxxxxXxx Xxxx, Xxxxxxxxxxxxx XX 00000, or electronically if agreed to by the parties, on each such date as provided in this Agreement.
Appears in 1 contract
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time and Settlement Date, (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission SEC have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement, if any, Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa4(q) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, Act shall have been filed with the Commission SEC within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the Securities Act shall have been instituted or threatened.
(b) The Company shall have requested and caused the Company Counsel Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP to furnish to the Manager, on each Representation Datedate specified in Section 4(k) of this Agreement, its opinion, dated as of such date their written opinion and negative assurance letter addressed to the Manager, substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2.A.
(c) The Company shall have requested and caused Maryland Counsel, Hxxxx Xxxxxxx US LLP to furnish to the Manager, on each Representation Datedate specified in Section 4(l) of this Agreement, its opinion, dated as of such date and their written opinion addressed to the Manager, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager shall have received from Xxxxxxx Procter Cxxxxxxxx & Bxxxxxx LLP, counsel for the Manager, on each Representation Datedate specified in Section 4(m) of this Agreement, such written opinion or opinionsand negative assurance letter, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(fe) The Company shall have furnished or caused to be furnished to the Manager, on each Representation Datedate specified in Section 4(j) of this Agreement, a certificate of the Company, signed by the Chairman of the Board, Chief Executive Officer, President or General Counsel, Officer and the principal financial or accounting officer of the Company, dated as of such date, to the effect that the signer signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any amendments or supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Transaction Entities Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities 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 date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Transaction EntitiesCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Registration Statement, the Disclosure PackagePackage and the Prospectus (exclusive of any amendment or supplement thereto), there has been no Material Adverse Effectmaterial adverse change in the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the ProspectusProspectus (exclusive of any amendment or supplement thereto).
(f) On or prior to the First Placement Notice Date, the Manager shall have received a certificate, signed on behalf of the Company by the Secretary of the Company and attested to by an executive officer of the Company, dated as of such date and in form and substance satisfactory to the Manager and its counsel, certifying as to (i) the amended and restated certificate of incorporation of the Company, (ii) the amended and restated bylaws of the Company, (iii) the resolutions of the board of directors of the Company or duly authorized committee thereof authorizing the execution, delivery and performance of this Agreement and the issuance and sale of the Shares and (iv) the incumbency of the officers of the Company duly authorized to execute this Agreement and the other documents contemplated by this Agreement (including each of the officers set forth on Exhibit 2).
(g) The Company shall have requested and caused the Accountants Ernst & Young LLP to have furnished to the Manager, on every each date specified in Section 4(p4(n) hereof of this Agreement and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634)or successor standards, as well as confirming that they have performed a review of any unaudited interim financial information of the Transaction Entities Company included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards XxNo. 000 (XX 000X)100 or successor standards. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letter.
(h) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6(g) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof)Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein At each Representation Date and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(j) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(l) The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager.
(m) Prior prior to each Settlement Date, the Transaction Entities Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request.
(j) The Shares shall have been listed and admitted and authorized for trading on the Nasdaq Global Market, and satisfactory evidence of such actions shall have been provided to the Manager. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date by the ManagerManager with respect to itself only. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Procter LLP, counsel for the Manager, at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, on each such date as provided in this Agreement.
Appears in 1 contract
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time and Settlement Date, (ii) to the performance by each of the Transaction Entities of its obligations hereunder, (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b); each Interim Prospectus Supplement, if any, shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa4(z) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused the Company Counsel to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2.
(c) The Company shall have requested and caused Maryland Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager shall have received from Xxxxxxx Procter LLP, counsel for the Manager, on each Representation Date, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished or caused to be furnished to the Manager, on each Representation Date, a certificate on behalf of the CompanyCompany and not personally, signed by the Chairman of the Board, Chief Executive Officer, President or General Counsel, and the principal financial or accounting officer of the Company, dated as of such date, to the effect that the signer of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Transaction Entities in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Transaction Entities, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package, there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus.
(g) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634), as well as confirming that they have performed a review of any unaudited interim financial information of the Transaction Entities included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards Xx. 000 (XX 000X); provided that no such letters shall be required relating to the Rockwood Predecessor Data Centers statement of revenue and certain expenses included or incorporated by reference in the Disclosure Package and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letter.
(h) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in Section 6(g) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof)Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto)Prospectus.
(i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(j) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(l) The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager.
(m) Prior to each Settlement Date, the Transaction Entities shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date by the Manager. Notice of such cancellation shall be given to the Company in writing or by facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Procter LLP, counsel for the Manager, at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, on each such date as provided in this Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (Digital Realty Trust, L.P.)
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company and the Operating Partnership contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time and Settlement Dateof Delivery, (ii) to the performance by each the Company and the Operating Partnership of the Transaction Entities of its their obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b); each Interim Prospectus Supplement, if any, shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa) with respect to any sale of this AgreementShares; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused the Company Counsel to furnish to the Manager, on each Representation Dateevery date specified in Section 4(l) of this Agreement, its opinionopinions collectively covering the opinions the form of which are attached as Exhibit A, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2.
(c) The Company shall have requested and caused Maryland Company Counsel, to furnish to the Manager, on each Representation Dateevery date specified in Section 4(l) of this Agreement, its opiniontax opinions, collectively covering the opinions the form of which are attached as Exhibit B, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B..
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(ec) The Manager shall have received from Skadden, Arps, Slate, Xxxxxxx Procter & Xxxx LLP, counsel for the Manager, on each Representation Dateevery date specified in Section 4(m) of this Agreement, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company and the Operating Partnership shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(fd) The Company shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4(k) of this Agreement, a certificate of the CompanyCompany and the Operating Partnership, signed by the Chairman of the Board, Chief Executive Officer, President or General Counsel, Officer and the principal financial or accounting officer of the CompanyCompany and the general partner of the Operating Partnership, dated as of such date, to the effect that the signer signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Transaction Entities Company and the Operating Partnership in this Agreement are true and correct on and as of such date except those related to a specific date with the same effect as if made on such date and the Transaction Entities Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge of or the Transaction EntitiesOperating Partnership, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package, there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the ProspectusPackage.
(ge) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p4(n) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures contained or incorporated by reference in the Registration Statement, the Disclosure Package Statement and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634)72, as well as confirming that they have performed a review of any unaudited interim financial information of the Transaction Entities Company included or incorporated by reference in the Registration Statement, the Disclosure Package Statement and the Prospectus in accordance with Statement on Auditing Standards XxNo. 000 (XX 000X)100. References to the Prospectus in this paragraph (ge) include any supplement thereto at the date of the letter.
(hf) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(p) of this Agreement, a certificate of the Company, signed by the principal financial or accounting officer of the Company, dated as of such date and addressed to the Manager, substantially in the form of Annex II hereto.
(g) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6(g) 6 or (ii) any material and adverse change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make makes it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(j) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(l) The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager.
(m) Prior to each Settlement Date, the Transaction Entities shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date by the Manager. Notice of such cancellation shall be given to the Company in writing or by facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Procter LLP, counsel for the Manager, at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, on each such date as provided in this Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (Easterly Government Properties, Inc.)
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time and Settlement Dateof Delivery, (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement, if any, Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa3(a)(ix) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b1) The Company shall have requested and caused the Company Counsel to furnish to the Manager, on each Representation Dateevery date specified in Section 4(l) of this Agreement, its opinionopinion and negative assurance statement, dated as of such date and addressed to the Manager, Manager in substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2.A.
(c2) The Company shall have requested and caused Maryland Counsel, its General Counsel to furnish to the Manager, on each Representation Dateevery date specified in Section 4(k) of this Agreement, its opinionopinion and negative assurance statement, dated as of such date and addressed to the Manager, Manager in substantially in the form attached hereto as Exhibit B.
(d3) The Company shall have requested and caused Tax CounselIn rendering such opinions, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to furnish the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Manager and (B) as to matters of fact, to the Managerextent they deem proper, on each Representation Date, its opinion, dated as certificates of such date responsible officers of the Company and addressed public officials. References to the Manager, substantially Prospectus in this paragraph (b) shall also include any supplements thereto at the form attached hereto as Exhibit C.Settlement Date.
(ec) The Manager shall have received from Xxxxxxx Procter Shearman & Sterling LLP, counsel for the Manager, on each Representation Dateevery date specified in Section 4(m) of this Agreement, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(fd) The Company shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chairman of the Board, Chief Executive Officer, Officer or the President or General Counsel, and the principal financial or accounting officer of the Company, dated as of such date, to the effect that the signer signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Transaction Entities Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities 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 date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Transaction EntitiesCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package, there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus.
(g1) The Company shall have requested and caused each of the Accountants and the 2005 Accountants to have furnished to the Manager, on every date specified in Section 4(p4(n) hereof and to the extent requested by the Manager and upon reasonable advance notice in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, which letters shall cover, without limitation, confirming that they are independent accountants within the various financial statements meaning of the Act and disclosures contained or incorporated the Exchange Act and the respective applicable rules and regulations adopted by reference the Commission thereunder and that (in the Registration Statement, case of the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634), as well as confirming that Accountants) they have performed a review of any unaudited interim financial information of the Transaction Entities Company and Northwest and included or incorporated by reference in the Registration Statement, the Disclosure Package Statement and the Prospectus in accordance with Statement on Auditing Standards XxNo. 000 100, and stating in effect that:
(XX 000Xi) in their opinion the audited financial statements and financial statement schedules and pro forma financial statements included or incorporated by reference in the Registration Statement and the Prospectus and reported on by them comply as to form with the applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted by the Commission;
(ii) (in the case of the Accountants) on the basis of a reading of the latest unaudited financial statements made available by the Company and Northwest and their respective subsidiaries; their limited review, in accordance with standards established under Statement on Auditing Standards No. 100, of the unaudited interim financial information for the 9-month period ended September 30, 2008, and as at September 30, 2008, carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and committees of the Company and Northwest and their respective subsidiaries; and inquiries of certain officials of the Company and Northwest who have responsibility for financial and accounting matters of the Company and Northwest and their respective subsidiaries as to transactions and events subsequent to September 30, 2008, nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included or incorporated by reference in the Registration Statement and the Prospectus do not comply as to form with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or incorporated by reference in Quarterly Reports on Form 10-Q under the Exchange Act; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by reference in the Registration Statement and the Prospectus;
(2) with respect to the period subsequent to September 30, 2008, there were any changes, at a specified date not more than five days prior to the date of the letter, in the long-term debt of the Company or Northwest and their respective subsidiaries or capital stock of the Company or Northwest or decreases in the stockholders’ equity of the Company or Northwest as compared with the amounts shown on the September 30, 2008 consolidated balance sheets included or incorporated by reference in the Registration Statement and the Prospectus, or for the period from October 1, 2008 to such specified date there were any decreases, as compared with the corresponding period in the preceding year, in net revenues or income before income taxes or in total or per share amounts of net income of the Company or Northwest and their respective subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company or Northwest as to the significance thereof unless said explanation is not deemed necessary by the Manager; or
(3) the information included or incorporated by reference in the Registration Statement and the Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data). , Item 302 (Supplementary Financial Information), Item 402 (Executive Compensation) and Item 503(d) (Ratio of Earnings to Fixed Charges) is not in conformity with the applicable disclosure requirements of Regulation S-K.
(iii) (in the case of the Accountants) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth or incorporated by reference in the Registration Statement and the Prospectus and in Exhibit 12 to the Registration Statement, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation; and
(iv) (in the case of the Accountants) on the basis of a reading of the unaudited pro forma financial statements included or incorporated by reference in the Registration Statement and the Prospectus (the “pro forma financial statements”); carrying out certain specified procedures; inquiries of certain officials of the Company and Northwest who have responsibility for financial and accounting matters; and proving the arithmetic accuracy of the application of the pro forma adjustments to the historical amounts in the pro forma financial statements, nothing came to their attention which caused them to believe that the pro forma financial statements do not comply as to form in all material respects with the applicable accounting requirements of Rule 11-02 of Regulation S-X or that the pro forma adjustments have not been properly applied to the historical amounts in the compilation of such statements.
(2) The Company shall have requested and caused its Chief Financial Officer to have furnished to the Manager, on every date specified in Section 4(m) hereof and to the extent requested by the Manager in connection with any offering of the Shares, a certificate as to certain financial information included in the Disclosure Package and the Prospectus, in form and substance reasonably satisfactory to the Manager.
(3) References to the Prospectus in this paragraph (ge) include any supplement thereto at the date of the letter.
(hf) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6(g) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(ig) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(jh) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) FINRA The Financial Industry Regulatory Authority shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(li) The Shares shall have been listed and admitted and authorized for trading on the NYSENew York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Manager.
(mj) Prior to each Settlement DateDate and Time of Delivery, as applicable, the Transaction Entities Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Procter Shearman & Sterling LLP, counsel for the Manager, at 00 Xxxxx Xxxxxx000 Xxxxxxxxx Xxx., XxxxxxXxx Xxxx, Xxxxxxxxxxxxx 00000XX, on each such date as provided in this Agreement.
Appears in 1 contract
Samples: Continuous Offering Program Agreement (Delta Air Lines Inc /De/)
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy in all material respects (except to the extent already qualified by materiality, in which case such obligations shall be subject to the accuracy in all respects) of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time and Settlement Dateof Delivery, (ii) to the performance by each of the Transaction Entities of its obligations hereunder, (iii) to the accuracy of the statements of the Transaction Entities Company made in any certificates pursuant to the provisions hereof, (iii) the performance by the Company of its obligations hereunder and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement, if any, Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa3(a)(ix) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused (i) Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP, counsel for the Company Counsel Company, to furnish to the Manager, on each Representation Dateevery date specified in Section 4(l)(i) of this Agreement, its opinionopinion and negative assurance letter, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Managereffect set forth in Exhibits A-1 and A-2 and (ii) Xxxxxxx X. Xxxxx, on each Representation DateSenior Vice President, a written statement, addressed to Deputy General Counsel and Corporate Secretary of the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2.
(c) The Company shall have requested and caused Maryland CounselCompany, to furnish to the Manager, on each Representation Dateevery date specified in Section 4(l)(ii) of this Agreement, its opinionhis opinion assurance letter, dated as of such date and addressed to the Manager, substantially to the effect set forth in Exhibit A-3, and (iii) gaming counsel to the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counselin each jurisdiction listed on Schedule III hereto, to furnish to the Manager, on every date specified in Section 4(m) of this Agreement, each Representation Date, its opinionof their opinions, dated as of such date and addressed to the Manager, substantially to the effect set forth in the form attached hereto as Exhibit C.A-4.
(ec) The Manager shall have received from Xxxxxx Xxxxxx & Xxxxxxx Procter LLP, counsel for the Manager, on each Representation Dateevery date specified in Section 4(n) of this Agreement, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(fd) The Company shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chairman two officers of the BoardCompany, Chief Executive Officer, President or General Counsel, and one of whom is the principal financial financial, treasurer or accounting officer of the Company, dated as of such date, to the effect that the signer signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and Package, the Prospectus and any supplements supplement or amendments thereto amendment thereto, as well as each electronic road show used in connection with the offering of the Shares, and this Agreement and that:
(i) the representations and warranties of the Transaction Entities Company in this Agreement are true and correct in all material respects (except to the extent already qualified by materiality, in which case such representations and warranties are true and correct in all respects) on and as of such date with the same effect as if made on such date and the Transaction Entities Company has complied in all material respects with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and is outstanding and no proceedings for that purpose have been instituted or, to the knowledge of the Transaction EntitiesCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure PackagePackage and the Prospectus (exclusive of any supplement thereto), there has been no Material Adverse Effectmaterial adverse change or any development involving a prospective material adverse change, in or affecting the condition (financial or otherwise), business, results of operations or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the ProspectusProspectus (exclusive of any amendment thereto).
(ge) The Company shall have requested and caused the Accountants Deloitte & Touche LLP to have furnished to the Manager, on every date specified in Section 4(p4(o) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, each in form and substance satisfactory to the Manager, which letters shall cover, without limitation, Manager and confirming that they are independent accountants within the various meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and confirming certain matters with respect to the audited and unaudited financial statements and disclosures other financial and accounting information contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634)Prospectus, as well as confirming that they have performed a review of including any unaudited interim financial information of the Transaction Entities included amendment or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards Xx. 000 (XX 000X). References to the Prospectus in this paragraph (g) include any supplement thereto at as of the date of the applicable letter.
(hf) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6(g) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earningsbusiness, business results of operations or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(jg) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes in Section 3(a)(62) of Rule 436(g) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(kh) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(li) The When issued and delivered pursuant to the Agreement and any applicable Terms Agreement, the Shares shall have been will be listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the ManagerNasdaq.
(mj) Prior to each Settlement DateDate and Time of Delivery, as applicable, the Transaction Entities Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxx Xxxxxx & Xxxxxxx Procter LLP, counsel for the Manager, at 00 Xxxxx Xxxx Xxxxxx, XxxxxxXxx Xxxx, Xxxxxxxxxxxxx Xxx Xxxx 00000, on each such date as provided in this Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (CAESARS ENTERTAINMENT Corp)
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time and Settlement Dateof Delivery, (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement, if any, Supplement required to be filed shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa4(s) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the Act shall have been instituted or threatened.
(b) The Company shall have requested and caused the each of Company Counsel and Company IP counsel to furnish to the Manager, on each Representation Dateevery date specified in Sections 4(l) and 4(m) of this Agreement, its opinion, dated as of such date an opinion collectively covering the opinions in form and addressed substance satisfactory to the Manager, substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2.
(c) The Company shall have requested and caused Maryland Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager shall have received from Xxxxxxx Procter Ropes & Xxxx LLP, counsel for the Manager, on each Representation Dateevery date specified in Section 4(n) of this Agreement, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(fd) The Company shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chairman chief executive officer of the Board, Chief Executive Officer, President or General CounselCompany, and of the principal chief financial or chief accounting officer of the Company, dated as of such date, to the effect that the signer signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Transaction Entities in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities 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 date;
(ii) received no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued Statement, and no proceedings for that such purpose or pursuant to Section 8A of the Act have been instituted or, to the knowledge of Company’s knowledge, threatened by the Transaction Entities, threatened; andCommission;
(iiiii) since the date of the most recent financial statements included or incorporated by reference in the Prospectus and the Disclosure Package, there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus;
(iii) the representations, warranties and covenants set forth in Section 2 of this Agreement are true and correct with the same force and effect as though expressly made on and as of such date; and
(iv) the Company has complied with all the agreements hereunder and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such date.
(ge) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p4(o) hereof to the extent financial information audited or reviewed by such firms is included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospect, as amended and supplement to the date of such letter, and to the extent requested by the Manager in connection with any offering of the Shares, letters a letter (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, which letters letter shall cover, without limitation, the various financial statements and disclosures contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634)72, as well as confirming that they have performed a review of any unaudited interim financial information of the Transaction Entities Company included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards XxNo. 000 (XX 000X)100. References to the Prospectus in this paragraph (ge) include any supplement thereto at the date of the letter.
(hf) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(p) of this Agreement, a certificate of the chief financial officer of the Company, dated as of such date, in form and substance to the Manager and agreed upon prior to the date hereof, covering certain financial matters of the Company.
(g) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6(g) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of businessMaterial Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(j) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(kh) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(li) The Shares shall have been listed and admitted and authorized for trading on the NYSENasdaq, and satisfactory evidence of such actions shall have been provided to the Manager.
(mj) Prior to each Settlement DateDate and Time of Delivery, as applicable, the Transaction Entities Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request.
(k) Prior to the Execution Time, the Manager shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Manager, along with such additional supporting documentation as requested by the Manager in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Managerits counsel, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Procter Ropes & Xxxx LLP, counsel for the Manager, at 00 Xxxxx 000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, Attention: Xxxx Xxxxxx, on each such date as provided in this Agreement.
Appears in 1 contract
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time and Settlement Dateof Delivery, (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b); each Interim Prospectus Supplement, if any, shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa) with respect to any sale of this AgreementShares; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Hxxxx Lovells US LLP, counsel to the Company Counsel and the Operating Partnership, to furnish to the Manager, on each Representation Dateevery date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed effect set forth in Annex II-1 and II-2 hereto and to such further effect as the counsel to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2may reasonably request.
(c) The Company shall have requested and caused Sxxx Xxxxx LLP, Maryland Counselcounsel for the Company and the Operating Partnership, to furnish to the Manager, on each Representation Dateevery date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, substantially to the effect set forth in Annex III hereto and to such further effect as the form attached hereto as Exhibit B.counsel to the Manager may reasonably request:
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager shall have received from Xxxxxxx Procter LLPSidley Austin llp, counsel for the Manager, on each Representation Dateevery date specified in Section 4(m) of this Agreement, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters. In giving their opinion, Sidley Austin LLP may rely as to matters involving the laws of the State of Maryland upon the opinion of Sxxx Xxxxx LLP or upon the opinion of counsel satisfactory to the Manager.
(fe) The Company shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chairman of the Board, Chief Executive Officer, Officer or the President or General Counsel, and the principal financial or accounting officer of the Company, dated as of such date, to the effect that the signer signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Transaction Entities Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities 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 date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Transaction EntitiesCompany’s knowledge, threatened; and;
(iii) since the date of the most recent financial statements included or incorporated by reference in the Registration Statement, the Disclosure PackagePackage and the Prospectus (exclusive of any amendment or supplement thereto), there has been no Material Adverse EffectChange, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the ProspectusProspectus (exclusive of any amendment or supplement thereto); and
(iv) there is not pending or threatened any action, suit, proceeding, inquiry or investigation, to which the Company, the Operating Partnership or any of their subsidiaries is a party, or to which any of their respective properties or assets is subject, before or brought by any court or governmental agency or body, domestic or foreign, which would reasonably be expected to result in a Material Adverse Change, or which would reasonably be expected to materially and adversely affect the properties or assets thereof or the consummation of the transactions contemplated in this Agreement or the performance by the Company or the Operating Partnership of their obligations under this Agreement.
(f) The Operating Partnership shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the chief executive officer and chief financial officer or chief accounting officer of the sole member of Campus Crest Communities GP, LLC, the general partner of the Operating Partnership, confirming that the representations and warranties of the Operating Partnership in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date.
(g) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chief Financial Officer of the Company, dated as of such date, in form satisfactory to the Manager.
(h) The Company shall have requested and caused the Accountants KPMG LLC to have furnished to the Manager, on every date specified in Section 4(p4(n) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, which letters shall cover, without limitation, the various financial containing statements and disclosures contained or incorporated by reference information of the type customarily included in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in respect to the Statement on Auditing Standards No. 72 (AU 634), as well as confirming that they have performed a review of any unaudited interim financial statements and certain financial information of the Transaction Entities included or incorporated by reference in the Registration Statement, the Disclosure Package and or the Prospectus in accordance with Statement Prospectus; provided, that the letter delivered on Auditing Standards Xx. 000 (XX 000X)the such date shall use a “cut-off” date no more than three business days prior to the such date. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letter.
(hi) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (h) of this Section 6(g) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of businessMaterial Adverse Change, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(ij) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(jk) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in or withdrawal of the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(kl) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(lm) The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager.
(mn) Prior to each Settlement DateDate and Time of Delivery, as applicable, the Transaction Entities Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Procter LLPSidley Austin llp, counsel for the Manager, at 00 Xxxxx 787 Xxxxxxx Xxxxxx, XxxxxxXxx Xxxx, Xxxxxxxxxxxxx Xxx Xxxx 00000, on xn each such date as provided in this Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (Campus Crest Communities, Inc.)
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time and Settlement Dateof Delivery, (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement, if any, Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa3(a)(ix) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused the Company Counsel Counsel, to furnish to the Manager, on each Representation Dateevery date specified in Section 4(l) of this Agreement, its opinionwritten opinions, substantially similar to the form attached hereto as Exhibit 6(b)(i) and Exhibit 6(b)(ii), dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2.
(c) The Company shall have requested and caused Maryland Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager shall have received from Xxxxxxx Procter Hunton & Xxxxxxxx LLP, counsel for the Manager, on each Representation Dateevery date specified in Section 4(m) of this Agreement, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(fd) The Company shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chairman of the Board, the Chief Executive Officer, the President or the Executive Vice President, General Counsel, Counsel and Secretary and the principal financial or accounting officer of the Company, or such other executive officers of the Company reasonably acceptable to the Manager, dated as of such date, to the effect that the signer signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Transaction Entities Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities 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 date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Transaction EntitiesCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included in or incorporated by reference in into the Registration Statement and the Disclosure Package, Package there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package Registration Statement and the ProspectusDisclosure Package.
(ge) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p4(n) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance reasonably satisfactory to the Manager, which letters shall cover, without limitation, confirming that they are independent accountants within the various financial statements and disclosures contained or incorporated by reference in meaning of the Registration Statement, the Disclosure Package Act and the Prospectus Exchange Act and other matters ordinarily covered the respective applicable rules and regulations adopted by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634), as well as confirming Commission thereunder and that they have performed a review of any unaudited interim financial information of the Transaction Entities Company included or incorporated by reference in the Registration Statement, the Disclosure Package Statement and the Prospectus in accordance with Statement on Auditing Standards XxNo. 000 100, and stating in effect that:
(XX 000Xi) in their opinion the audited financial statements and financial statement schedules included or incorporated by reference in the Registration Statement and the Prospectus and reported on by them comply as to form with the applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and its subsidiaries; their limited review, in accordance with standards established under Statement on Auditing Standards No. 100, of the unaudited interim financial information included or incorporated by reference in the Registration Statement and the Prospectus; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and the audit committee of the Company and the subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to the date of the most recent audited financial statements included or incorporated by reference in the Registration Statement and the Prospectus, nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included or incorporated by reference in the Registration Statement and the Prospectus do not comply as to form with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or incorporated by reference in Quarterly Reports on Form 10-Q under the Exchange Act; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by reference in the Registration Statement and the Prospectus;
(2) with respect to the period subsequent to the date of the most recent financial statements (other than any capsule information), audited or unaudited, included or incorporated by reference in the Registration Statement and the Prospectus, there were any changes, at a specified date not more than five days prior to the date of the letter, in the capital stock and consolidated debt of the Company or decreases in the stockholders’ equity of the Company as compared with the amounts shown on the consolidated balance sheet dated as of the most recent financial statements included or incorporated by reference in the Registration Statement and the Prospectus included or incorporated by reference in the Registration Statement and the Prospectus, or for the period from such date to such specified date there were any decreases, as compared with the appropriate comparative period in consolidated revenues or in total or per share amounts of consolidated earnings of the Company before extraordinary items or of consolidate earnings except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Manager;
(3) the information included or incorporated by reference in the Registration Statement and the Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data) and Item 503(d) (Ratio of Earnings to Fixed Charges) is not in conformity with the applicable disclosure requirements of Regulation S-K; and
(4) To the extent capsule financial information is included or incorporated by reference in the Registration Statement and the Prospectus, the unaudited capsule information does not agree with the amounts set forth in the unaudited financial statements for the same periods or were not determined on a basis substantially consistent with that of the corresponding amounts in the audited financial statements included or incorporated by reference in the Registration Statement and the Prospectus; and
(iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth or incorporated by reference in the Registration Statement and the Prospectus and in Exhibit 12 to the Registration Statement agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (ge) include any supplement thereto at the date of the letter.
(hf) Since the respective dates as of which information is disclosed in the Registration Statement, Statement and the Disclosure Package and the ProspectusPackage, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6(g) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), ) and the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(ig) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(jh) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ki) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(lj) The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager.
(mk) Prior to each Settlement DateDate and Time of Delivery, as applicable, the Transaction Entities Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Procter Hunton & Xxxxxxxx LLP, counsel for the Manager, at 00 Xxxxx Bank of America Plaza, Suite 4100, 000 Xxxxxxxxx Xxxxxx, XxxxxxX.X., Xxxxxxxxxxxxx Xxxxxxx, Xxxxxxx 00000-0000, Attn: Xxxxxxxxxxx X. Xxxxx, on each such date as provided in this Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (National Retail Properties, Inc.)
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Partnership contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time and Settlement Dateof Delivery, (ii) to the performance by each of the Transaction Entities Partnership of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) 6.1 The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b); each Interim Prospectus Supplement, if any, shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa) with respect to any sale of this AgreementUnits; any other material required to be filed by the Company Partnership pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or or, to the knowledge of the Partnership, threatened.
(b) 6.2 The Company Partnership shall have requested furnished or caused to be furnished the opinions and caused the Company Counsel to furnish to the Managerletters from its counsel and accountants as set forth in Section 4, on each Representation Date, its opinion, dated the dates as of such date and addressed to the Manager, substantially set forth in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2Section 4.
(c) The Company shall have requested and caused Maryland Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) 6.3 The Manager shall have received from Xxxxxxx Procter LLPXxxxxx & Xxxxxx L.L.P., counsel for the Manager, an opinion as set forth in Section 4.22, on each Representation Date, such opinion or opinions, dated the dates as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably requireset forth in Section 4, and the Company Partnership shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(f) 6.4 The Company General Partner shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4.11 of this Agreement, a certificate of the Company, signed by the Chairman of the Board, Chief Executive Officer, President or General Counsel, its principal executive officer and the principal financial or accounting officer of the Company, dated as of such date, to the effect that the signer of such certificate have has carefully examined the Registration Statement, the Disclosure Package Statement and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(ia) the representations and warranties of the Transaction Entities Partnership in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date;
(iib) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued by the Commission and no proceedings for that purpose have been instituted or, to the knowledge of the Transaction Entitiessuch officer’s knowledge, threatened; and;
(iiic) since the date of the most recent financial statements included or incorporated by reference in the Disclosure PackageProspectus, there has been no Material Adverse Effectmaterial adverse effect on the general affairs, except as set forth in or contemplated in the Disclosure Package and the Prospectus.
(g) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634), as well as confirming that they have performed a review of any unaudited interim financial information of the Transaction Entities included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards Xx. 000 (XX 000X). References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letter.
(h) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in Section 6(g) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earningsresults of operations, business business, properties, assets or properties prospects of the Company and its subsidiaries Teekay Entities, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and Prospectus, as amended or supplemented; and
d) on those Representation Dates when the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case opinions referred to in clause Section 4.15 through Section 4.21 are not provided, that, to such officer’s knowledge, there has not been any material change in the facts on which the opinions in Section 4.15 through Section 4.21 are based.
6.5 The Partnership shall have requested and caused KPMG LLP to have furnished to the Manager, on every date specified in Section 4.23 hereof and to the extent reasonably requested by the Manager in connection with any offering of the Units a comfort letter, dated respectively as of such date, in form and substance reasonably satisfactory to the Manager.
6.6 Subsequent to the respective dates as of which information is disclosed in the Registration Statement and the Prospectus, except as otherwise stated therein, there shall not have been (i) any adverse change or decrease specified in the letter referred to in Section 6.5 or (ii) aboveany adverse change, isor any development involving a prospective adverse change that would reasonably be expected to have a Material Adverse Effect, which, in the sole judgment Manager’s opinion, would materially and adversely affect the market for Units.
6.7 Since the date of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with most recent financial statements included in the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(j) Between the Execution Time and the time of any sale of Shares through the ManagerProspectus, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities of the Partnership by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) 6.8 FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(l) 6.9 The Shares Units shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager.
(m) 6.10 Prior to each Settlement DateDate and Time of Delivery, as applicable, the Transaction Entities Partnership shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company Partnership in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at to the office of Xxxxxxx Procter LLPXxxxxx & Xxxxxx L.L.P., counsel for the Manager, at 00 0000 Xxxxxxxxxxxx Xxx. XX, Xxxxx Xxxxxx000 Xxxx, XxxxxxXxxxxxxxxx, Xxxxxxxxxxxxx XX 00000, or electronically to Xxxxxx & Xxxxxx L.L.P. at an address provided by it to the Partnership or its counsel, on each such date as provided in this Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (Teekay Offshore Partners L.P.)
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time and Settlement Dateof Delivery, (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement, if any, Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa4(x) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Manager shall have requested and caused received the opinions of Company Counsel required to furnish be delivered pursuant to Section 4(l) on or before the Manager, date on each Representation Date, its opinion, dated as which such delivery of such date and addressed opinions are required pursuant to the Manager, substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2Section 4(l).
(c) The Company shall have requested and caused Maryland Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager shall have received from Xxxxxxx Procter LLP, counsel for the Manager, opinion of IP Counsel or officer’s certificate required to be delivered pursuant to Section 4(m) on or before each Representation Date, date on which such delivery of such opinion or opinions, dated as of such date and addressed officer’s certificate is required pursuant to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such mattersSection 4(m).
(fd) The Company shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chairman of the Board, Board or the Chief Executive Officer, President or General Counsel, Officer and the principal financial or accounting officer of the Company, dated as of such date, to the effect that the signer signers of such certificate have carefully examined the Registration Statement, the Disclosure Package Statement and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Transaction Entities Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities 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 date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Transaction EntitiesCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure PackageProspectus, there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), business prospects, earnings, business or properties of the Company and its subsidiaries, if any, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus.
(ge) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p4 (n) hereof and to the extent requested by the Manager in connection with any offering of the Shareshereof, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance reasonably satisfactory to the Manager, which letters shall cover, without limitation, confirming that they are independent accountants within the various financial statements and disclosures contained or incorporated by reference in meaning of the Registration Statement, the Disclosure Package Securities Act and the Prospectus Exchange Act and other matters ordinarily covered the respective applicable rules and regulations adopted by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634), as well as confirming Commission thereunder and that they have performed a review of any unaudited interim financial information of the Transaction Entities Company included or incorporated by reference in the Registration Statement, the Disclosure Package Statement and the Prospectus in accordance with Statement on Auditing Standards XxNo. 000 (XX 000X). References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letter100.
(hf) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package Statement and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in Section 6(g) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries subsidiaries, if any, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, which is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Prospectus (exclusive of any amendment or supplement thereto).
(i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(jg) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g436 (g) under the Securities Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(kh) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(li) The Shares shall have been listed and admitted and authorized for trading on the NYSENasdaq, and satisfactory evidence of such actions shall have been provided to the Manager.
(mj) Prior to each Settlement DateDate and Time of Delivery, as applicable, the Transaction Entities Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date by the Manager. Notice of such cancellation shall be given to the Company in writing or by facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxx & Xxxxxxx Procter LLP, counsel for the Manager, at 00 00000 Xxxx Xxxxx XxxxxxXxxxx, XxxxxxXxx Xxxxx, Xxxxxxxxxxxxx Xxxxxxxxxx 00000, on each such date as provided in this Agreement.
Appears in 1 contract
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Partnership contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time and Settlement Dateof Delivery, (ii) to the performance by each of the Transaction Entities Partnership of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b); each Interim Prospectus Supplement, if any, shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa) with respect to any sale of this AgreementUnits; any other material required to be filed by the Company Partnership pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused the Company Counsel to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2.
(c) The Company shall have requested and caused Maryland Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager shall have received from Xxxxxxx Procter LLP, counsel for the Manager, on each Representation Date, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(f) The Company Partnership shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4(l) hereof, a certificate of the CompanyPartnership, signed by the Chairman on behalf of the Board, Partnership by any two of the Chief Executive Officer, any President, any Executive Vice President, any Senior Vice President or General Counsel, and the principal financial or accounting officer any Vice President of the CompanyGP LLC, dated as of such date, to the effect that the signer signers of such certificate have carefully examined the Registration Statement, the Disclosure Package Statement and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) subject to modification to incorporate the disclosures contained in the Registration Statement and the Prospectus, in each case as amended or supplemented as of such date, the representations and warranties of the Transaction Entities Partnership in this Agreement are true and correct on and as of such date with the same effect as if made on such date date; and the Transaction Entities Partnership has complied in all material respects (except with respect to agreements and conditions that are qualified by materiality, which shall be true and correct in all respects) with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Transaction EntitiesPartnership’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure PackageProspectus, there has not been no any change, or any development involving a prospective change, in the partnership interests, capital stock, or long-term debt of the Partnership or any of its subsidiaries that would reasonably be expected to cause a Material Adverse Effect, except or any change in the general affairs, management, financial position, results of operations, cash flows or working capital of the Partnership and its subsidiaries, whether or not arising from transactions in the ordinary course of business, that would reasonably be expected to cause a Material Adverse Effect, other than as set forth in or contemplated by the Prospectus.
(c) The Partnership shall have requested and caused the Partnership Counsel to furnish to the Manager, on every date specified in Section 4(m) hereof, its opinion, dated as of such date and addressed to the Manager, in the Disclosure Package form set forth in Annex II hereto.
(d) The Partnership shall have furnished to the Manager, on every date specified in Section 4(n) hereof, an opinion of the General Counsel, addressed to the Manager, and dated as of such date, and in form satisfactory to the Manager, in the form set forth in Annex III hereto.
(e) The Partnership shall have furnished, or shall have requested and caused the Outside Canadian Counsel to furnish, to the Manager, on every date specified in Section 4(o) hereof, an opinion of such applicable Canadian Counsel, dated as of such date and addressed to the Manager, in the form set forth in Annex IV hereto.
(f) The Manager shall have received from Manager’s Counsel on every date specified in Section 4(p) hereof, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Units, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the ProspectusPartnership shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(g) The Company Partnership shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p4(q) hereof and to the extent reasonably requested by the Manager with advance notice to the Partnership in connection with any offering of the SharesUnits, letters (which may refer to letters previously delivered to the Manager)) containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus, dated as of such date, in form and substance satisfactory to the Manager, which ; provided that the cut-off date for the procedures performed by such accountants and described in such letters shall cover, without limitation, the various financial statements and disclosures contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” be a date not more than five days prior to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634), as well as confirming that they have performed a review of any unaudited interim financial information of the Transaction Entities included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards Xx. 000 (XX 000X). References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the such letter.
(h) Since Subsequent to the respective dates as of which information is disclosed given in the Registration Statement, the Disclosure Package Statement and the Prospectus, except as otherwise stated therein, there shall not have been occurred (i) any change or decrease specified in the letter or letters referred to in Section 6(g) or (ii) any change, or any development involving a prospective changechange that would reasonably be expected to have a Material Adverse Effect, in or affecting not contemplated by the condition (financial or otherwise)Prospectus, earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions which in the ordinary course of businessManager’s opinion, except as set forth in or contemplated in would materially adversely affect the Disclosure Package and market for the Prospectus (exclusive of any amendment or supplement thereto) the effect of whichUnits, in any case referred to in clause (i) or (ii) above, isany event or development relating to or involving any of the Plains Entities or any executive officer or director of any of such entities that makes any statement made in the Prospectus untrue or which, in the sole judgment opinion of the ManagerPartnership and its counsel or the Manager and its counsel, so requires the making of any addition to or change in the Prospectus in order to state a material and adverse as fact required by the Act or any other law to be stated therein or necessary in order to make it impractical or inadvisable to proceed with the offering or delivery statements therein, in the light of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof)circumstances under which they were made, the Disclosure Package and not misleading, if amending or supplementing the Prospectus (exclusive of any amendment to reflect such event or supplement thereto)development would, in the Manager’s opinion, materially adversely affect the market for the Units.
(i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(j) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(lj) The Shares Units shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager.
(mk) Prior to each Settlement DateDate and Time of Delivery, as applicable, the Transaction Entities Partnership shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above in this Section 6 or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company Partnership in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered to the Manager by this Section 6 shall be delivered at the office of Xxxxxxx Procter Manager’s Counsel, at Xxxxx Xxxxx LLP, counsel for the ManagerOne Shell Plaza, at 00 Xxxxx 000 Xxxxxxxxx Xxxxxx, XxxxxxXxxxxxx, Xxxxxxxxxxxxx Xxxxx 00000, on each such date as provided in this Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (Plains All American Pipeline Lp)
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time and Settlement Dateof Delivery, (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement, if any, Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa4(r) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the Act shall have been instituted or threatened.
(b) The Company shall have requested and caused the (i) Company Counsel to furnish to the Manager, on each Representation Dateevery date specified in Section 4(l) of this Agreement, its opinion, opinions and disclosure letter dated as of such date and addressed to the Manager, substantially in Manager collectively covering the opinions and disclosure letter the form of which are attached hereto as Exhibit A-1. Such counsel A, provided that no such opinions or disclosure letter shall also have be required to be furnished to the Manager, on each Representation Date, a written statement, addressed to any such date if the Manager and dated as of such date, substantially does not receive the opinions specified in the form attached hereto as Exhibit A-2.
clause (c) The below on the same date, and (ii) Company shall have requested and caused Maryland Counsel, Tax Counsel to furnish to the Manager, on each Representation Dateevery date specified in Section 4(l) of this Agreement, its opinion, an opinion dated as of such date and addressed to the Manager, substantially in Manager covering any tax-related matters as the form attached hereto as Exhibit B.Manager may reasonably require.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(ec) The Manager shall have received from Xxxxxxx Procter Weil, Gotshal & Xxxxxx LLP, counsel for the Manager, on each Representation Dateevery date specified in Section 4(m) of this Agreement, such opinion or opinionsopinions and disclosure letter or letters, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(fd) The Company shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chairman of the Board, Chief Executive Officer, President or General Counsel, and the principal financial or accounting an executive officer of the Company, dated as of such date, to the effect that the signer of such certificate have has carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Transaction Entities in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities 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 date;
(ii) received no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued Statement, and no proceedings for that such purpose or pursuant to Section 8A of the Act have been instituted or, to the knowledge of Company’s knowledge, threatened by the Transaction Entities, threatened; andCommission;
(iiiii) since the date of the most recent financial statements included or incorporated by reference in the Prospectus and the Disclosure Package, there has been no event or condition of a type described in Section 2(m) hereof (a “Material Adverse EffectChange”), except as set forth in or contemplated in the Disclosure Package and the Prospectus;
(iii) the representations, warranties and covenants set forth in Section 2 of this Agreement are true and correct with the same force and effect as though expressly made on and as of such date; and
(iv) the Company and its subsidiaries have complied with all the agreements hereunder and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such date.
(ge) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p4(n) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634)72, as well as confirming that they have performed a review of any unaudited interim financial information of the Transaction Entities Company included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards XxNo. 000 (XX 000X)100. References to the Prospectus in this paragraph (ge) include any supplement thereto at the date of the letter.
(hf) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(o) of this Agreement, a certificate, signed by the chief financial officer of the Company, dated as of such date, providing “management comfort” with respect to certain financial data included or incorporated by reference in the Disclosure Package and the Prospectus.
(g) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in Section 6(g) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of businessMaterial Adverse Change, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, which is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(j) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(kh) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(li) The Shares shall have been listed and admitted and authorized for trading on the NYSENASDAQ, and satisfactory evidence of such actions shall have been provided to the Manager.
(mj) Prior to each Settlement DateDate and Time of Delivery, as applicable, the Transaction Entities Company shall have furnished to the Designated Manager such further information, certificates and documents as the Designated Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Procter Weil, Gotshal & Xxxxxx LLP, counsel for the Manager, at 00 000 Xxxxx Xxxxxx, XxxxxxXxx Xxxx, Xxxxxxxxxxxxx Xxx Xxxx 00000, on each such date as provided in this Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (Keurig Dr Pepper Inc.)
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company and the Partnership contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time and Settlement Dateof Delivery, (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement, if any, Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa3(a)(viii) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.. 32
(b) The Company shall have requested and caused the Company Counsel Counsel, to furnish to the Manager, on each Representation Dateevery date specified in Section 4(k) of this Agreement, its opinionan opinion of Company Counsel addressed to the Manager in the form of Exhibits A-1 and A-2, dated as of such date and a letter from Xxxxxx & Xxxxxxxx LLP, addressed to the Manager, substantially in the form attached hereto as of Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2A-3.
(c) The Company shall have requested and caused Maryland Senior Corporate Counsel, to furnish to the Manager, on each Representation Dateevery date specified in Section 4(k) of this Agreement, its opinionan opinion of Senior Corporate Counsel addressed to the Manager in the form of Exhibit B
(d) The Company shall have requested and caused Senior Corporate Counsel, to furnish to the Manager, on every date specified in Section 4(k) of this Agreement, an opinion of Maryland Counsel addressed to the Manager in the form of Exhibit C.
(e) The Manager shall have received on every date specified in Section 4(k) of this Agreement, the favorable opinion of Clifford Chance US LLP, counsel for the Managers, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager shall have received from Xxxxxxx Procter LLP, counsel for the Manager, on each Representation Date, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(f) The Company and the Partnership shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4(k) of this Agreement a certificate of its Chief Financial Officer and its Chief Accounting Officer, in the case of the Company, and of its general partner, in the case of the Partnership, in the form attached as Exhibit D hereto. The Managers shall have received from the Company and the Partnership on every date specified in Section 4(k), a certificate of the Company, signed by the Chairman of the Board, its Chief Executive Financial Officer and its Chief Accounting Officer, President or General Counsel, and in the principal financial or accounting officer case of the Company, dated as of such dateand its general partner, to in the effect that the signer of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties case of the Transaction Entities in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted orPartnership, to the knowledge of the Transaction Entities, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package, there has been no Material Adverse Effect, except form attached as set forth in or contemplated in the Disclosure Package and the Prospectus.Exhibit E hereto
(g) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p4(n) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered a comfort letter addressed to the Manager), dated as of such date, Managers in the form and substance satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634), as well as confirming that they have performed a review of any unaudited interim financial information of the Transaction Entities included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards Xx. 000 (XX 000X). References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letterManagers.
(h) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any no material adverse change or decrease specified in the letter or letters referred to in Section 6(g) or (ii) any change, or any development involving reasonably expected to result in a prospective changematerial adverse change in the business, in properties, management, financial condition or affecting the condition (financial or otherwise), earnings, business or properties results of operations of the Company Company, the Partnership and its subsidiaries the Subsidiaries taken as a whole, whether whole shall occur or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) become known the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective post‑effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(j) No Prospectus or amendment or supplement to the Registration Statement or the Prospectus shall have been filed to which the Manager objects in writing
(k) Between the Execution Time and the time of any sale of Shares through the Manager, there (i) no stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings initiated under Section 8(d) or 8(e) of the Securities Act; (ii) the Registration Statement and all amendments thereto shall not have been any decrease contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) the Prospectus and amendments or supplements thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the rating of any light of the Company’s circumstances under which they are made, not misleading; (iv) no Disclosure Package, and no amendment or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or supplement thereto, shall include an untrue statement of a possible change material fact or omit to state a material fact necessary in any such rating that does not indicate order to make the direction statements therein, in the light of the possible changecircumstances under which they are made, not misleading; and (v) none of the Issuer Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(kl) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(lm) The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager.
(mn) The Articles Supplementary shall have been accepted for record by the MSDAT and shall be effective under the Maryland REIT Law.
(o) Prior to each Settlement DateDate and Time of Delivery, as applicable, the Transaction Entities Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Procter Clifford Chance US LLP, counsel for the Manager, at 00 Xxxxx XxxxxxXxxx 00xx Xx., XxxxxxXxx Xxxx, Xxxxxxxxxxxxx Xxx Xxxx 00000, on each such date as provided in this Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (Hersha Hospitality Trust)
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Partnership contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time and Settlement Dateof Delivery, (ii) to the performance by each of the Transaction Entities Partnership of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b); each Interim Prospectus Supplement, if any, shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa) with respect to any sale of this AgreementUnits; any other material required to be filed by the Company Partnership pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Partnership shall have requested and caused the Company Counsel Partnership Counsel, to furnish to the Manager, on each Representation Dateevery date specified in Section 4(l) of this Agreement, its opinionopinions, each dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the ManagerAnnex II-1, on each Representation Date, a written statement, addressed to the Manager Annex II-2 and dated as of such date, substantially in the form attached hereto as Exhibit A-2Annex II-3.
(c) The Company shall have requested and caused Maryland Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager shall have received from Xxxxxxx Procter Xxxxx Lord LLP, counsel for the Manager, on each Representation Dateevery date specified in Section 4(m) of this Agreement, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the SharesUnits, the Registration Statement, the Disclosure Package, the Prospectus Package (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company Partnership shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(fd) The Company Partnership shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4(k) of this Agreement, a certificate of the Companygeneral partner of the Partnership, signed by the Chairman of the Board, Chief Executive Officer, President or General Counsel, Officer and the principal financial or accounting officer of the Companyofficer, dated as of such date, to the effect that the signer signers of such certificate have carefully examined the Registration Statement, Statement and the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Transaction Entities Partnership in this Agreement are true and correct on and as of such date with the same effect as if made on such date date, and the Transaction Entities Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Transaction EntitiesPartnership’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Registration Statement and the Disclosure Package, there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package Registration Statement and the ProspectusDisclosure Package.
(ge) The Company Partnership shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p4(n) hereof and to the extent requested by the Manager in connection with any offering of the SharesUnits, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, which letters shall coveras follows:
(i) confirming that they are independent public accountants within the meaning of the Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission;
(ii) The financial statements included or incorporated by reference in the Registration Statement, the Base Prospectus and any Prospectus Supplement, together with the related notes and schedules, present fairly the consolidated financial positions of the entities purported to be shown thereby as of the dates indicated and the consolidated results of operations, cash flows and changes in partners’ equity of such entities for the periods specified and have been prepared in all material respects in compliance with the requirements of the Act and Exchange Act and in conformity with U.S. generally accepted accounting principles applied on a consistent basis during the periods involved, except to the extent disclosed therein; all pro forma financial statements or data included or incorporated by reference in the Registration Statement, the Base Prospectus and any Prospectus Supplement comply in all material respects with the requirements of the Act (including, without limitation, Regulation S-X under the various Act) and the Exchange Act (including, without limitation, Regulation G under the Exchange Act), Item 10 under Regulation S-K and Financial Accounting Standards Board Interpretation No. 46, and the assumptions used in the preparation of such pro forma financial statements and disclosures data are, in the Partnership’s judgment, reasonable, the pro forma adjustments used therein are appropriate to give effect to the transactions or circumstances described therein and the pro forma adjustments have been properly applied to the historical amounts in the compilation of those statements and data; the other financial and statistical data contained or incorporated by reference in the Registration Statement, the Disclosure Package Base Prospectus, the Prospectus Supplement and the Prospectus are accurately and fairly presented and prepared on a basis consistent with the financial statements and books and records of the Partnership Entities; there are no financial statements (historical or pro forma) that are required to be included or incorporated by reference in the Registration Statement, the Base Prospectus, the Prospectus Supplement or the Prospectus that are not included or incorporated by reference as required; and
(iii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus Supplement, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634), as well as confirming that they have performed a review of any unaudited interim financial information of the Transaction Entities included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards Xx. 000 (XX 000X). References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letterofferings.
(h) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in Section 6(g) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(jf) Between the Execution Time and the time of any sale of Shares Units through this Manager, there shall not have occurred any development that in the judgment of the Manager could have a Material Adverse Effect, taken as a whole from that set forth in the Registration Statement and the Disclosure Package (in each case, exclusive of any amendment or supplement thereto) that makes it, in your judgment, impracticable or inadvisable to proceed with the offer, sale or delivery of the Units on the terms and in the manner contemplated in the Registration Statement or the Disclosure Package.
(g) Between the Execution Time and the time of any sale of Units through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g436(g)(2) under the ActAct as in effect on July 20, 2010) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(kh) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(li) The Shares Units shall have been listed and admitted and authorized for trading on the NYSE, subject only to official notice of issuance, and satisfactory evidence of such actions shall have been provided to the Manager.
(mj) Prior to each Settlement DateDate and Time of Delivery, as applicable, the Transaction Entities Partnership shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company Partnership in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Procter Xxxxx Lord LLP, counsel for the Manager, at 00 Xxxxx 000 Xxxxxx Xxxxxx, XxxxxxSuite 2800, Xxxxxxxxxxxxx 00000Houston, Texas 77002, or electronically if agreed to by the parties, on each such date as provided in this Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (Regency Energy Partners LP)
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery (except to the extent such representations and Settlement Datewarranties expressly relate to a specific earlier date (in which case such representations and warranties shall be true and correct as of such specified earlier date)), (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, thereto required by Rule 424 to be filed with the Commission Commission, have been filed in the manner and within the time period required by Rule 424(b); each Interim Prospectus Supplement, if any, shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa) with respect to any sale of this AgreementShares; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused the Company Counsel Counsel, to furnish to the Manager, on each Representation Dateevery date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially effect set forth in the form attached hereto as Exhibit A-2.Annex B.
(c) The Company shall have requested and caused Maryland Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager shall have received from Xxxxxxx Procter Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel for the Manager, on each Representation Dateevery date specified in Section 4(m) of this Agreement, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(fd) The Company shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chairman of the Board, Chief Executive Officer, Officer or the President or General Counsel, and the principal financial or accounting officer of the Company, dated as of such date, to the effect that the signer signers of such certificate have carefully examined the Registration Statement, the Disclosure Package Statement and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Transaction Entities Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date (except to the extent such representations and warranties expressly relate to a specific earlier date (in which case such representations and warranties shall be true and correct as of such specified earlier date)) and the Transaction Entities Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Transaction EntitiesCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure PackageRegistration Statement and the Prospectus, there has been no Material Adverse Effect, Effect except as set forth in or contemplated in the Disclosure Package Registration Statement and the Prospectus.
(ge) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p4(n) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager)letters, dated as of such date, in form and substance satisfactory to the Manager, which letters shall coversubstantially in the form of Annex C hereto, without limitationand confirming that they are independent accountants within the meaning of the Securities Act, the various financial statements and disclosures contained or incorporated by reference in the Registration Statement, the Disclosure Package Exchange Act and the Prospectus respective applicable rules and other matters ordinarily covered regulations adopted by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634), as well as confirming Commission thereunder and that they have performed a review of any unaudited interim financial information of the Transaction Entities Company included or incorporated by reference in the Registration Statement, the Disclosure Package Statement and the Prospectus in accordance with Statement on Auditing Standards XxStandard No. 000 (XX 000X). References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letter4105.
(hf) Since Subsequent to the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package Statement and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6(g) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of businessMaterial Adverse Effect, except as set forth in or contemplated in the Disclosure Package Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and thereof)and the Prospectus (exclusive of any amendment or supplement thereto).
(ig) The Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have paid the required Commission filing fees relating furnished to the Shares within Manager such further information, certificates and documents as the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b)Manager may reasonably request.
(jh) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(ki) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(lj) The Shares shall have been listed and admitted and authorized for trading on the NYSENasdaq, and satisfactory evidence of such actions shall have been provided to the Manager.
(m) Prior to each Settlement Date, the Transaction Entities shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled cancelled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Procter Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel for the Manager, at 00 Xxxxx Xxxxxx0000 Xxxxxxxxx Xxxxx, Xxxxxx#1200, Xxxxxxxxxxxxx 00000Irvine, California 92612, on each such date as provided in this Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (Clean Energy Fuels Corp.)
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time and Settlement Dateof Delivery, (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement, if any, Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa4(q) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the Act shall have been instituted or threatenedthreatened by the Commission; no stop order suspending or preventing the use of the Disclosure Package, Prospectus or any Issuer Free Writing Prospectus shall have been instituted or, to the Company’s knowledge, threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.
(b) The Company shall have requested and caused the Company Counsel to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, an opinion and a negative assurance letter, each Representation Datein the form and substance reasonably satisfactory to the Manager.
(c) The Managers shall have received from Xxxxx Xxxx & Xxxxxxxx LLP, its opinioncounsel for the Managers, on every date specified in Section 4(m) of this Agreement, such opinion or opinions and disclosure letter or letters, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2.
(c) The Company shall have requested and caused Maryland Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager shall have received from Xxxxxxx Procter LLP, counsel for the Manager, on each Representation Date, such opinion or opinions, dated as of such date and addressed to the ManagerManagers, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager Managers may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(fd) The Company shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chairman chief executive officer or the President of the Board, Chief Executive Officer, President or General CounselCompany, and of the principal chief financial or chief accounting officer of the Company, dated as of such date, to the effect that the signer signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Transaction Entities in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities 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 date;
(ii) received no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued Statement, and no proceedings for that such purpose or pursuant to Section 8A of the Act have been instituted or, to the knowledge of Company’s knowledge, threatened by the Transaction Entities, threatened; andCommission;
(iiiii) since the date of the most recent financial statements included or incorporated by reference in the Prospectus and the Disclosure Package, there has been no event or condition of a type described in Section 2(k) hereof (a “Material Adverse EffectChange”), except as set forth in or contemplated in the Disclosure Package and the Prospectus;
(iii) the representations, warranties and covenants set forth in Section 2 of this Agreement are true and correct with the same force and effect as though expressly made on and as of such date; and
(iv) the Company and its subsidiaries have complied with all the agreements hereunder and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such date.
(ge) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the chief financial or chief accounting officer of the Company, dated as of such date, with respect to certain financial data contained in the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto, providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Manager.
(f) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p4(n) hereof to the extent financial information audited or reviewed by such firms is included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus, as amended and supplemented to the date of such letter, and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634)72, as well as confirming that they have performed a review of any unaudited interim financial information of the Transaction Entities Company included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards XxNo. 000 (XX 000X)100. References to the Prospectus in this paragraph (ge) include any supplement thereto at the date of the letter.
(hg) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6(g) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of businessMaterial Adverse Change, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(j) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(kh) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(li) The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the ManagerNASDAQ.
(mj) Prior to each Settlement DateDate and Time of Delivery, as applicable, the Transaction Entities Company shall have furnished to the Designated Manager such further information, certificates and documents as the Designated Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Procter LLP, counsel for the Manager, at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, on each such date as provided in this Agreement.
Appears in 1 contract
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time and Settlement Dateof Delivery, (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement, if any, Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa4(q) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the Act shall have been instituted or threatened.
(b) The Company shall have requested and caused the Company Counsel and Intellectual Property Counsel to furnish to the Manager, on each Representation Dateevery date specified in Section 4(l) of this Agreement, its opinion, dated as of such date opinions in form and addressed substance satisfactory to the Manager, substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2.
(c) The Company shall have requested and caused Maryland Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager shall have received from Xxxxxxx Procter Lxxxxx & Wxxxxxx LLP, counsel for the Manager, on each Representation Dateevery date specified in Section 4(m) of this Agreement, such opinion or opinionsopinions and disclosure letter or letters, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(fd) The Company shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chairman chief executive officer or the President of the Board, Chief Executive Officer, President or General CounselCompany, and of the principal chief financial or chief accounting officer of the Company, dated as of such date, to the effect that the signer signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Transaction Entities in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities 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 date;
(ii) received no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued Statement, and no proceedings for that such purpose or pursuant to Section 8A of the Act have been instituted or, to the knowledge of Company’s knowledge, threatened by the Transaction Entities, threatened; andCommission;
(iiiii) since the date of the most recent financial statements included or incorporated by reference in the Prospectus and the Disclosure Package, there has been no event or condition of a type described in Section 2(l) hereof (a “Material Adverse EffectChange”), except as set forth in or contemplated in the Disclosure Package and the Prospectus;
(iii) the representations, warranties and covenants set forth in Section 2 of this Agreement are true and correct with the same force and effect as though expressly made on and as of such date; and
(iv) the Company and its subsidiaries have complied with all the agreements hereunder and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such date.
(ge) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p4(n) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634)72, as well as confirming that they have performed a review of any unaudited interim financial information of the Transaction Entities Company included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards XxNo. 000 (XX 000X)100. References to the Prospectus in this paragraph (ge) include any supplement thereto at the date of the letter.
(hf) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, if requested by the Manager, a certificate of the Company’ Chief Financial Officer of the Company, dated as of such date, in form and substance satisfactory to the Manager, of its Chief Financial Officer with respect to certain financial data contained in the Prospectus, providing “management comfort” with respect to such information.
(g) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6(g) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of businessMaterial Adverse Change, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(j) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(kh) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(li) The Shares shall have been listed and admitted and authorized for trading on the NYSENASDAQ, and satisfactory evidence of such actions shall have been provided to the Manager.
(mj) Prior to each Settlement DateDate and Time of Delivery, as applicable, the Transaction Entities Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the applicable Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the ManagerManager with respect to itself only. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Procter Lxxxxx & Wxxxxxx LLP, counsel for the Manager, at 00 Xxxxx Xxxxxx1000 Xxxxxx xx xxx Xxxxxxxx, XxxxxxXxx Xxxx, Xxxxxxxxxxxxx Xxx Xxxx 00000, on each such date as provided in this Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (Amicus Therapeutics, Inc.)
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time and Settlement Dateof Delivery, (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement, if any, Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa4(q) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the Act shall have been instituted or threatened.
(b) The Company shall have requested and caused the Company Counsel to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, an opinion and negative assurance letter, each Representation Date, its opinion, dated as of such date in form and addressed substance reasonably satisfactory to the Manager, substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2.
(c) The Company shall have requested and caused Maryland CounselRxxxxxxx, Fxxx, Ernst & Mxxxxxx, p.c., or other intellectual property counsel reasonably satisfactory to the Manager, to furnish to the Manager, on each Representation Datedate specified in Section 4(m) of this Agreement, its opinion, dated as of such date and their opinions addressed to the Manager, substantially in form and substance reasonably satisfactory to the form attached hereto as Exhibit B.Manager and its counsel.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager shall have received from Xxxxxxx Gxxxxxx Procter LLP, counsel for the Manager, on each Representation Dateevery date specified in Section 4(n) of this Agreement, such opinion or opinionsopinions and disclosure letter or letters, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(fe) The Company shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chairman chief executive officer or the President of the Board, Chief Executive Officer, President or General CounselCompany, and of the principal chief financial or chief accounting officer of the Company, dated as of such date, to the effect that the signer signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Transaction Entities in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities 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 date;
(ii) received no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued Statement, and no proceedings for that such purpose or pursuant to Section 8A of the Act have been instituted or, to the knowledge of Company’s knowledge, threatened by the Transaction Entities, threatened; andCommission;
(iiiii) since the date of the most recent financial statements included or incorporated by reference in the Prospectus and the Disclosure Package, there has been no event or condition of a type described in Section 2(n) hereof (a “Material Adverse EffectChange”), except as set forth in or contemplated in the Disclosure Package and the Prospectus;
(iii) the representations, warranties and covenants set forth in Section 2 of this Agreement are true and correct with the same force and effect as though expressly made on and as of such date; and
(iv) the Company and its subsidiary have complied with all the agreements hereunder and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such date.
(gf) The Company shall have requested and caused each of (i) the Accountants and (ii), if applicable, the Former Accountants, to have furnished to the Manager, on every date specified in Section 4(p4(o) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634or any successor thereto), as well as confirming that they have performed a review of any unaudited interim financial information of the Transaction Entities Company included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards XxNo. 000 100 (XX 000Xor any successor thereto). References to the Prospectus in this paragraph (ge) include any supplement thereto at the date of the letter.
(hg) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6(g) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of businessMaterial Adverse Change, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(j) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(kh) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(li) The Shares shall have been listed and admitted and authorized for trading on the NYSENYSE American, and satisfactory evidence of such actions shall have been provided to the Manager.
(mj) Prior to each Settlement DateDate and Time of Delivery, as applicable, the Transaction Entities Company shall have furnished to the Designated Manager such further information, certificates and documents as the Designated Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the applicable Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Gxxxxxx Procter LLP, counsel for the Manager, at 00 Xxxxx Xxxxxx600 Xxxxxxxx Xxxxxx Redwood City, Xxxxxx, Xxxxxxxxxxxxx 00000CA 94063, on each such date as provided in this Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (Senseonics Holdings, Inc.)
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time and Settlement Dateof Delivery, (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) 6.1 The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b); each Interim Prospectus Supplement, if any, shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa) with respect to any sale of this AgreementShares; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or or, to the knowledge of the Company, threatened.
(b) 6.2 The Company shall have requested furnished or caused to be furnished the opinions and caused the Company Counsel to furnish to the Managerletters from its counsel and accountants as set forth in Section 4, on each Representation Date, its opinion, dated the dates as of such date and addressed to the Manager, substantially set forth in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2Section 4.
(c) The Company shall have requested and caused Maryland Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) 6.3 The Manager shall have received from Xxxxxxx Procter LLPXxxxx Xxxxx L.L.P., counsel for the Manager, an opinion as set forth in Section 4.19, on each Representation Date, such opinion or opinions, dated the dates as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably requireset forth in Section 4, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(f) 6.4 The Company shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4.11 of this Agreement, a certificate of the Company, signed by the Chairman of the Board, Chief Executive Officer, President its principal executive officer or General Counsel, and the principal financial or accounting officer of the Company, dated as of such date, to the effect that the signer of such certificate have has carefully examined the Registration Statement, the Disclosure Package Statement and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(ia) the representations and warranties of the Transaction Entities Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities 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 date;
(iib) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued by the Commission and no proceedings for that purpose have been instituted or, to the knowledge of the Transaction Entitiessuch officer’s knowledge, threatened; and;
(iiic) since the date of the most recent financial statements included or incorporated by reference in the Disclosure PackageProspectus, there has been no Material Adverse Effectmaterial adverse effect on the general affairs, except as set forth in or contemplated in the Disclosure Package and the Prospectus.
(g) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634), as well as confirming that they have performed a review of any unaudited interim financial information of the Transaction Entities included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards Xx. 000 (XX 000X). References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letter.
(h) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in Section 6(g) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earningsresults of operations, business business, properties, assets or properties prospects of the Company and its subsidiaries Teekay Entities, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and Prospectus, as amended or supplemented; and
d) on those Representation Dates when the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case opinions referred to in clause Section 4.14 through Section 4.18 are not provided, that, to such officer’s knowledge, there has not been any material change in the facts on which the opinions in Section 4.14 through Section 4.18 are based.
6.5 The Company shall have requested and caused KPMG LLP to have furnished to the Manager, on every date specified in Section 4.20 hereof and to the extent reasonably requested by the Manager in connection with any offering of the Shares a comfort letter, dated respectively as of such date, in form and substance reasonably satisfactory to the Manager.
6.6 Subsequent to the respective dates as of which information is disclosed in the Registration Statement and the Prospectus, except as otherwise stated therein, there shall not have been (i) any adverse change or decrease specified in the letter referred to in Section 6.5 or (ii) aboveany adverse change, isor any development involving a prospective adverse change that would reasonably be expected to have a Material Adverse Effect, which, in the sole judgment of Manager’s opinion, would materially and adversely affect the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto)market for Shares.
(i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(j) 6.7 Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) 6.8 FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(l) 6.9 The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager.
(m) 6.10 Prior to each Settlement DateDate and Time of Delivery, as applicable, the Transaction Entities Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at to the office of Xxxxxxx Procter LLPXxxxx Xxxxx L.L.P., counsel for the Manager, at 00 0000 Xxxxxxxxxxxx Xxx. XX, Xxxxxxxxxx, XX 00000, or electronically to Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000Xxxxx L.L.P. at an address provided by it to the Company or its counsel, on each such date as provided in this Agreement.
Appears in 1 contract
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time and Settlement Dateof Delivery, (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) 6.1 The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission shall have been filed in the manner and within the time period required by Rule 424(b); each Interim Prospectus Supplement, if any, shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa) with respect to any sale of this AgreementShares; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or or, to the knowledge of the Company, threatened.
(b) 6.2 The Company shall have requested furnished or caused to be furnished the opinions and caused the Company Counsel to furnish to the Managerletters from its counsel and accountants as set forth in Section 4, on each Representation Date, its opinion, dated the dates as of such date and addressed to the Manager, substantially set forth in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2Section 4.
(c) The Company shall have requested and caused Maryland Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) 6.3 The Manager shall have received from Xxxxxxx Procter Cravath, Swaine & Xxxxx LLP, counsel for the Manager, an opinion as set forth in Section 4, on each Representation Date, such opinion or opinions, dated the dates as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably requireset forth in Section 4, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(f) 6.4 The Company shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4.13 of this Agreement, a certificate of the Company, signed by the Chairman of the Board, Chief Executive Officer, President or General Counsel, its principal executive officer and the principal financial or accounting officer of the Company, dated as of such date, to the effect that the signer of such certificate have has carefully examined the Registration Statement, the Disclosure Package Statement and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(ia) the representations and warranties of the Transaction Entities Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities 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 date;
(iib) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued by the Commission and no proceedings for that purpose have been instituted or, to the knowledge of the Transaction Entitiessuch officer’s knowledge, threatened; and;
(iiic) since the date of the most recent financial statements included or incorporated by reference in the Disclosure PackageProspectus, there has been no Material Adverse Effectmaterial adverse effect on the general affairs, except as set forth in or contemplated in the Disclosure Package and the Prospectus.
(g) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634), as well as confirming that they have performed a review of any unaudited interim financial information of the Transaction Entities included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards Xx. 000 (XX 000X). References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letter.
(h) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in Section 6(g) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earningsresults of operations, business business, properties, assets or properties prospects of the Company and its subsidiaries subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto); and
(d) on those Representation Dates when the effect of which, in any case opinions referred to in clause Sections 4.16, 4.18 and 4.19 are not provided, that, to such officer’s knowledge, there has not been any material change in the facts on which the opinions in Sections 4.16, 4.18 and 4.19 are based.
6.5 The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4.21 hereof and to the extent reasonably requested by the Manager in connection with any offering of the Shares, comfort letters, dated respectively as of such date, in form and substance reasonably satisfactory to the Manager.
6.6 Subsequent to the respective dates as of which information is disclosed in the Registration Statement and the Prospectus, except as otherwise stated therein, there shall not have been (i) any adverse change or decrease specified in the letter or letter referred to in Sections 6.5 or (ii) aboveany adverse change, isor any development involving a prospective adverse change that would reasonably be expected to have a Material Adverse Effect, which, in the sole judgment Manager’s opinion, would materially and adversely affect the market for Shares.
6.7 Since the date of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with most recent financial statements included in the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(j) Between the Execution Time and the time of any sale of Shares through the ManagerProspectus, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes in Section 3(a)(62) of Rule 436(g) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) 6.8 FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(l) 6.9 The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager.
(m) 6.10 Prior to each Settlement DateDate and Time of Delivery, as applicable, the Transaction Entities Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at to the office of Xxxxxxx Procter Xxxxxx & Xxxxx LLP, counsel for the Manager, at 00 Xxxxx 000 Xxxxxx Xxxxxx, XxxxxxXxx Xxxx, Xxxxxxxxxxxxx XX 00000, or electronically to Cravath, Swaine & Xxxxx at an address provided by it to the Company or its counsel, on each such date as provided in this Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (Teekay Tankers Ltd.)
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Purchase Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time and Settlement Dateof Delivery, (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement, if any, Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa3(a) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused the Company Counsel to furnish to the Manager, on each Representation Dateevery date specified in Section 4 of this Agreement, its opinionopinion and negative assurance statement, dated as of such date and addressed to the Manager, Manager in substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2.A.
(c) The Company shall have requested and caused Maryland CounselIn rendering such opinions, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Florida or the Federal laws of the United States, to furnish the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Manager and (B) as to matters of fact, to the Managerextent they deem proper, on each Representation Date, its opinion, dated as certificates of such date responsible officers of the Company and addressed public officials. References to the Manager, substantially Prospectus in this paragraph (c) shall also include any supplements thereto at the form attached hereto as Exhibit B.Settlement Date.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager shall have received from Xxxxxxx Procter LLP, counsel for the Manager, on each Representation Date, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4 of this Agreement, a certificate of the Company, signed by the Chairman of the Board, Chief Executive Officer, Officer or the President or General Counsel, and the principal financial or accounting officer of the Company, dated as of such date, to the effect that the signer of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Transaction Entities in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Transaction Entities, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package, there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus.
(g) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634), as well as confirming that they have performed a review of any unaudited interim financial information of the Transaction Entities included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards Xx. 000 (XX 000X). References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letter.
(h) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in Section 6(g) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(j) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(l) The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager.
(m) Prior to each Settlement Date, the Transaction Entities shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date by the Manager. Notice of such cancellation shall be given to the Company in writing or by facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Procter LLP, counsel for the Manager, at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, on each such date as provided in this Agreement.the
Appears in 1 contract
Samples: At the Market Program Agreement (China Direct Industries, Inc.)
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time and Settlement Dateof Delivery, (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement, if any, Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa4(r) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the Act shall have been instituted or threatened.
(b) The Company shall have requested and caused the Company Counsel to furnish to the Manager, on each Representation Dateevery date specified in Section 4(l) of this Agreement, its opinion, dated as of such date an opinion in form and addressed substance reasonably satisfactory to the Manager, substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2.
(c) The Company shall have requested and caused Maryland Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager shall have received from Xxxxxxx Procter LLP, counsel for the Manager, Manager on each Representation Dateevery date specified in Section 4(l) of this Agreement, such opinion or opinionsopinions and disclosure letter or letters, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(fd) The Company shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4(l) of this Agreement, a certificate of the Chief Financial Officer of the Company with respect to certain financial data contained in the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto, providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the Manager;
(e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a certificate of the Company, signed by the Chairman chief executive officer or the President of the Board, Chief Executive Officer, President or General CounselCompany, and of the principal chief financial or chief accounting officer of the Company, dated as of such date, to the effect that the signer signers of such certificate have carefully examined reviewed the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Transaction Entities in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities 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 date;
(ii) received no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued Statement, and no proceedings for that such purpose or pursuant to Section 8A of the Act have been instituted or, to the knowledge of Company’s knowledge, threatened by the Transaction Entities, threatened; andCommission;
(iiiii) since the date of the most recent financial statements included or incorporated by reference in the Prospectus and the Disclosure Package, there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus;
(iii) the representations and warranties set forth in Section 2 of this Agreement are true and correct with the same force and effect as though expressly made on and as of such date; and
(iv) the Company and its subsidiaries have complied with all the agreements hereunder and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such date.
(gf) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p4(o) hereof to the extent financial information audited or reviewed by such firms is included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus, as amended and supplemented to the date of such letter and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance reasonably satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634)72, as well as confirming that they have performed a review of any unaudited interim financial information of the Transaction Entities Company included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards XxNo. 000 (XX 000X)100. References to the Prospectus in this paragraph (gf) include any supplement thereto at the date of the letter.
(hg) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6(g) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of businessMaterial Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(j) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(kh) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(li) The Shares shall have been listed and admitted and authorized for trading on the NYSENasdaq, and satisfactory evidence of such actions shall have been provided to the Manager.
(mj) Prior to each Settlement DateDate and Time of Delivery, as applicable, the Transaction Entities Company shall have furnished to the Designated Manager such further information, certificates and documents as the Designated Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the applicable Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Skadden, Arps, Slate, Xxxxxxx Procter LLP& Xxxx LLP at Xxx Xxxxxxxxx Xxxx, counsel for the ManagerXxx Xxxx, at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx XX 00000, on each such date as provided in this Agreement.
Appears in 1 contract
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time and Settlement Date, Date (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement, if any, Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa3(a) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused the Company Counsel to furnish to the Manager, on each Representation Dateevery date specified in Section 4 of this Agreement, its opinionopinion and negative assurance statement, dated as of such date and addressed to the Manager, Manager in substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2.A.
(c) The Company shall have requested and caused Maryland CounselIn rendering such opinions, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Florida or the Federal laws of the United States, to furnish the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Manager and (B) as to matters of fact, to the Managerextent they deem proper, on each Representation Date, its opinion, dated as certificates of such date responsible officers of the Company and addressed public officials. References to the Manager, substantially Prospectus in this paragraph (c) shall also include any supplements thereto at the form attached hereto as Exhibit B.Settlement Date.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager shall have received from Xxxxxxx Procter LLP, counsel for the Manager, on each Representation Date, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4 of this Agreement, a certificate of the Company, signed by the Chairman of the Board, Chief Executive Officer, Officer or the President or General Counsel, and the principal financial or accounting officer of the Company, dated as of such date, to the effect that the signer signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Transaction Entities Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities 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 date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Transaction EntitiesCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package, there has been no Material Adverse EffectEffect on the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus.
(ge) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p) 4 hereof and to the extent requested by the Manager and upon reasonable advance notice in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, which letters shall cover, without limitation, confirming that they are independent accountants within the various financial statements and disclosures contained or incorporated by reference in meaning of the Registration Statement, the Disclosure Package Act and the Prospectus Exchange Act and other matters ordinarily covered the respective applicable rules and regulations adopted by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634), as well as confirming Commission thereunder and that they have performed a review of any unaudited interim financial information of the Transaction Entities Company and included or incorporated by reference in the Registration Statement, the Disclosure Package Statement and the Prospectus in accordance with Statement on Auditing Standards XxNo. 000 100, and stating in effect that:
(XX 000X)i) in their opinion the audited financial statements and financial statement schedules and pro forma financial statements included or incorporated by reference in the Registration Statement and the Prospectus and reported on by them comply as to form with the applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and their respective subsidiaries; their limited review, in accordance with standards established under Statement on Auditing Standards No. References 100, of the unaudited interim financial information for the most recently reported quarter, carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and committees of the Company and their respective subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and their respective subsidiaries as to transactions and events subsequent to the end of such quarter, nothing came to their attention which caused them to believe that:
1. any unaudited financial statements included or incorporated by reference in the Registration Statement and the Prospectus do not comply as to form with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or incorporated by reference in this paragraph (g) include Quarterly Reports on Form 10-Q under the Exchange Act; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by reference in the Registration Statement and the Prospectus;
2. with respect to the period subsequent to the most recently reported quarter, there were any supplement thereto changes, at a specified date not more than five days prior to the date of the letter, in the long-term debt of the Company and their respective subsidiaries or capital stock of the Company or decreases in the stockholders’ equity of the Company as compared with the amounts shown on such consolidated balance sheets included or incorporated by reference in the Registration Statement and the Prospectus, or for the period from the end of such period to such specified date there were any decreases, as compared with the corresponding period in the preceding year, in net revenues or income before income taxes or in total or per share amounts of net income of the Company and their respective subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Manager; or
3. the information included or incorporated by reference in the Registration Statement and the Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), Item 302 (Supplementary Financial Information), Item 402 (Executive Compensation) and Item 503(d) (Ratio of Earnings to Fixed Charges) is not in conformity with the applicable disclosure requirements of Regulation S-K.
(iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth or incorporated by reference in the Registration Statement and the Prospectus and in Exhibit 12 to the Registration Statement, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation; and
(f) The Company shall have requested and caused its principal financial and accounting officer to have furnished to the Manager, on every date specified in Section 4 hereof and to the extent requested by the Manager in connection with any offering of the Shares, a certificate as to certain financial information included in the Disclosure Package and the Prospectus, in form and substance reasonably satisfactory to the Manager.
(hg) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (d) of this Section 6(g) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(ih) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(ji) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) FINRA The Financial Industry Regulatory Authority shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(lj) The Shares shall have been listed and admitted and authorized for trading on the NYSETrading Market, and satisfactory evidence of such actions shall have been provided to the Manager.
(mk) Prior to each Settlement Date, the Transaction Entities Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Procter LLPWeixxxxxx Xxixx XXP, counsel for the Manager, at 00 420 Xxxxxxxxx Xxx., Xxxxx Xxxxxx0000, XxxxxxXxx Xxxx, Xxxxxxxxxxxxx XX 00000, on xn each such date as provided in this Agreement.
Appears in 1 contract
Samples: Continuous Offering Program Agreement (China Direct Industries, Inc.)
Conditions to the Obligations of the Manager. The obligations of the Manager and Forward Purchaser under this Agreement (including any Terms Agreement) and the Confirmations shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, Date and as of each Applicable Time, Settlement Date and Time and Settlement Dateof Delivery, (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Offered Shares; each Interim Prospectus Supplement, if any, Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa) of this Agreement); any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused the Company Counsel Xxxxxx & Xxxxxxx to furnish to the ManagerManager and the Forward Purchaser (or, in the case of a Representation Date of the type described in Section 4(k)(iii) of this Agreement, the Manager party to such Terms Agreement), on each Representation Dateevery date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the ManagerManager and the Forward Purchaser, in substantially in the form attached hereto as set forth in Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2A hereto.
(c) The Company shall have requested and caused Maryland Counsel, GableGotwals to furnish to the ManagerManager and the Forward Purchaser (or, in the case of a Representation Date of the type described in Section 4(k)(iii) of this Agreement, the Manager party to such Terms Agreement), on each Representation Dateevery date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the ManagerManager and the Forward Purchaser, in substantially in the form attached hereto as set forth in Exhibit B.B hereto.
(d) The Company shall have requested Manager and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager Forward Purchaser shall have received from Xxxxxxx Procter LLPXxxx Xxxxxxxx, counsel for the ManagerManager and the Forward Purchaser (or, in the case of a Representation Date of the type described in Section 4(k)(iii) of this Agreement, the Manager party to such Terms Agreement), on each Representation Dateevery date specified in Section 4(m) of this Agreement, such opinion or opinions, dated as of such date and addressed to the ManagerManager and the Forward Purchaser, with respect to the issuance and sale of the Offered Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any amendment or supplement thereto) and other related matters as the Manager and the Forward Purchaser may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(e) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (g) of this Section 6 or (ii) any adverse change, or any development involving a prospective adverse change, in or affecting the business, properties, management, earnings, results of operations or financial condition of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Offered Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(f) The Company shall have furnished or caused to be furnished to the ManagerManager and the Forward Purchaser (or, in the case of a Financial Representation Date of the type described in Section 4(n)(ii) of this Agreement, the Manager party to such Terms Agreement), on each Representation Dateevery date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chairman of the Board, President and Chief Executive Officer, President or General Counsel, Officer and the principal financial or accounting officer of the Company, dated as of such date, to the effect that the signer signers of such certificate have carefully examined reviewed the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) subject to modification to incorporate the disclosures contained in the Registration Statement, the Disclosure Package and the Prospectus, and the documents incorporated by reference therein, in each case as amended or supplemented as of such date, the representations and warranties of the Transaction Entities Company in Section 2 of this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities 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 date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Transaction EntitiesCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package, there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus.
(g) The Company shall have requested and caused PricewaterhouseCoopers LLP and Ernst & Young LLP, to the Accountants extent an audit opinion of such firm is incorporated by reference in the Registration Statement, to have furnished to the ManagerManager and the Forward Purchaser (or, in the case of a Financial Representation Date of the type described in Section 4(n)(ii) of this Agreement, the Manager party to such Terms Agreement), on every date specified in Section 4(p4(n) hereof and to the extent requested by the Manager in connection with any offering of the Shareshereof, letters (which may refer to letters previously delivered to the ManagerManager and the Forward Purchaser), containing statements and information of the type ordinarily included in accountants “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Interim Prospectus Supplements, the Prospectus and the Permitted Free Writing Prospectuses, if any, dated as of such date, in form and substance satisfactory to the ManagerManager and the Forward Purchaser or, which in the case of Section 4(k)(iii), the Manager party to such Terms Agreement; provided that the cut-off date for the procedures performed by such accountants and described in such letters shall cover, without limitation, the various financial statements and disclosures contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” be a date not more than two Business Days prior to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634), as well as confirming that they have performed a review of any unaudited interim financial information of the Transaction Entities included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards Xx. 000 (XX 000X). References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the such letter.
(h) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in Section 6(g) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(j) Between the Execution Time and the time of any sale of Offered Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as such term is defined for purposes in Section 3(a)(62) of Rule 436(g) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(li) The Offered Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the ManagerManager and the Forward Purchaser.
(mj) Prior to each Settlement DateDate and Time of Delivery, as applicable, the Transaction Entities Company shall have furnished to the Manager and the Forward Purchaser, as applicable (or, in the case of a Representation Date of the type described in Section 4(k)(iii) of this Agreement, the Manager party to such Terms Agreement), such further information, certificates and documents as the Manager Manager(s) may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and the Forward Purchaser and counsel for the ManagerManager and the Forward Purchaser, this Agreement and all obligations of the Manager and the Forward Purchaser hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the ManagerManager and the Forward Purchaser. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Procter LLPXxxx Xxxxxxxx, counsel for the ManagerManager and the Forward Purchaser, at 00 Xxxxx 000 Xxxx Xxxxxx, XxxxxxXxx Xxxx, Xxxxxxxxxxxxx Xxx Xxxx 00000, on each such date as provided in this Agreement.
Appears in 1 contract
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities DCP Parties contained herein as of the Execution Time, Time and each Representation Date, and as of each Applicable Time and Settlement Date, (ii) to the performance by each the DCP Parties of the Transaction Entities of its their obligations hereunder, and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b); each Interim Prospectus Supplement, if any, shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa) with respect to any sale of this AgreementUnits; any other material required to be filed by the Company Partnership pursuant to Rule 433(d) under the Securities Act, Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company Partnership shall have requested and caused the Company Partnership Counsel to furnish to the Manager, on each every Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and opinion dated as of such date, substantially in form and substance satisfactory to the form attached hereto as Manager to the effect set forth on Exhibit A-2B hereto.
(c) The Company shall have requested and caused Maryland Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager shall have received from Xxxxxxx Procter LLPX. Xxxxxxxx, Vice President, General Counsel and Secretary of DCP Midstream GP, LLC, on every Representation Date, his opinion dated as of such date, in form and substance satisfactory to the Manager to the effect set forth on Exhibit C hereto.
(d) The Manager shall have received from Xxxxx Xxxxx L.L.P., counsel for the Manager, on each every Representation Date, such its opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the SharesUnits, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company Partnership shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(fe) The Company Partnership shall have furnished or caused to be furnished to the Manager, on each every Representation Date, a certificate of the CompanyPartnership, signed on behalf of the Partnership by the Chairman of the Board, Chief Executive Officer, Board or the President or General Counsel, and the principal financial or accounting officer Chief Financial Officer of the CompanyDCP Midstream GP, LLC, dated as of such date, to the effect that the signer signers of such certificate have carefully examined the Registration Statement, the Disclosure Package Statement and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of each of the Transaction Entities DCP Parties in this Agreement are true and correct on and as of such date with the same effect as if made on such date and each of the Transaction Entities DCP Parties has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Transaction EntitiesPartnership’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure PackageProspectus, there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), results of operations, prospects, earnings, business or properties of the Partnership Entities and Operating Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the ProspectusProspectus (exclusive of any supplement thereto).
(gf) The Company Partnership shall have requested and caused the Accountants Deloitte & Touche LLP to have furnished to the Manager, on every date specified in Section 4(p4(m) hereof and to the extent requested by the Manager in connection with any offering of the SharesUnits, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, which letters shall cover, without limitationManager (i) confirming that such firm is an independent registered public accounting firm within the meaning of the Act, the various Rules and Regulations and the rules of the PCAOB, (ii) stating, as of the date of such letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial statements and disclosures contained or incorporated by reference information is given in the Registration Statementmost recent Prospectus Supplement, as of a date not more than three days prior to the date of such letter), the Disclosure Package conclusions and findings of such firm with respect to the Prospectus financial information and (iii) covering such other matters as are ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634), as well as confirming that they have performed a review of any unaudited interim financial information of the Transaction Entities included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards Xx. 000 (XX 000X). References to the Prospectus in this paragraph offerings.
(g) include The Partnership shall have requested and caused Ernst & Young LLP to have furnished to the Manager, on every date specified in Section 4(m) hereof and to the extent requested by the Manager in connection with any supplement thereto at offering of the Units, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager (i) confirming that such firm is an independent registered public accounting firm within the meaning of the Act, the Rules and Regulations and the rules of the PCAOB, (ii) stating, as of the date of the letter.
such letter (h) Since or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is disclosed given in the Registration Statementmost recent Prospectus Supplement, as of a date not more than four Business Days prior to the date of such letter), the Disclosure Package conclusions and findings of such firm with respect to the financial information, and (iii) covering such other matters as are ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(h) The Partnership shall have requested and caused UHY LLP to have furnished to the Manager, on every date specified in Section 4(m) hereof and to the extent requested by the Manager in connection with any offering of the Units, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager (i) confirming that such firm is an independent registered public accounting firm within the meaning of the Act and the Rules and Regulations and (ii) covering such other matters as are ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(i) Since the date of the latest audited financial statements included in the Prospectus, except (i) none of the Partnership Entities shall have sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order, investigation or decree, otherwise than as otherwise stated thereinset forth or contemplated in the Prospectus, or shall have become a party to or the subject of any litigation, court or governmental action, investigation, order or decree that is materially adverse to the Partnership Entities, taken as a whole, and (ii) there shall not have been (i) any change or decrease specified in the letter capitalization or letters referred to increase in Section 6(g) short-term or (ii) long-term debt of any of the Partnership Entities or any change, or any development involving a prospective change, in or affecting the general affairs, management, condition (financial or otherwise), earningsstockholders’ equity, partners’ equity, members’ equity, results of operations, properties, business or properties prospects of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of businessPartnership Entities, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares Units as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package ) and the Prospectus (exclusive of any amendment or supplement thereto).
(i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(j) Between the Execution Time and the time any Time of any sale of Shares through the ManagerDelivery, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes that term is used in Section 15E of Rule 436(g) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement or any Terms Agreement.
(l) The Shares NYSE shall have been listed and admitted and authorized approved the Units for trading on the NYSElisting, and satisfactory evidence subject only to official notice of such actions shall have been provided to the Managerissuance.
(m) Prior to each Settlement Date, the Transaction Entities The Partnership shall have furnished to the Manager at each Representation Date such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company Partnership in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Procter Holland & Xxxx LLP, counsel for the ManagerDCP Parties, at 00 000 00xx Xxxxxx, Xxxxx Xxxxxx0000, Xxxxxx, Xxxxxxxxxxxxx Xxxxxxxx 00000, or electronically if agreed to by the parties, on each such date as provided in this Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (DCP Midstream Partners, LP)
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time and Settlement Date, (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement, if any, Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa4(t) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the Act shall have been instituted or threatenedor, to the knowledge of the Company, be threatened by the Commission.
(b) The Company shall have requested and caused the Company Counsel to furnish to the Manager, on each Representation Dateevery date specified in Section 4(l) of this Agreement subject to Section 4(r), its opinion, dated as of such date a written opinion and addressed disclosure letter in form and substance reasonably satisfactory to the Manager, substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2.
(c) The Company shall have requested and caused Maryland Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager shall have received from Xxxxxxx Procter Shearman & Sterling LLP, counsel for the Manager, on each Representation Dateevery date specified in Section 4(m) of this Agreement subject to Section 4(r), such opinion or opinionsopinions and disclosure letter or letters, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(fd) The Company shall have requested and caused IP Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement subject to Section 4(r), such written opinions, dated as of such date and addressed to the Manager, with respect to intellectual property matters, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4(k) of this Agreement subject to Section 4(r), a certificate of the Company, signed by the Chairman chief executive officer or the President of the Board, Chief Executive Officer, President or General CounselCompany, and by the principal chief financial or chief accounting officer of the Company, dated as of such date, to the effect that the signer signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Transaction Entities in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities 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 date;
(ii) received no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued Statement, and no proceedings for that such purpose or pursuant to Section 8A of the Act have been instituted or, to the knowledge of Company’s knowledge, are threatened by the Transaction Entities, threatened; andCommission;
(iiiii) since the date of the most recent financial statements included or incorporated by reference in the Prospectus and the Disclosure Package, there has been no event or condition of a type described in Section 2(l) hereof (a “Material Adverse EffectChange”), except as set forth in or contemplated in the Disclosure Package and the Prospectus;
(iii) the representations, warranties and covenants set forth in Section 2 of this Agreement are true and correct with the same force and effect as though expressly made on and as of such date; and
(iv) the Company has complied with all the agreements hereunder and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such date.
(gf) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p4(o) hereof and to the extent requested by the Manager in connection with any offering of the Shareshereof, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance reasonably satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634)AS 6101, as well as confirming that they have performed a review of any unaudited interim financial information of the Transaction Entities Company included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards Xx. 000 (XX 000X)AS 4105. References to the Prospectus in this paragraph (gf) include any supplement thereto at the date of the letter.
(hg) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in Section 6(g) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of businessMaterial Adverse Change, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, which is, in the sole reasonable judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(j) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(kh) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(li) The Shares shall have been listed and admitted and authorized for trading on the NYSENasdaq, and satisfactory evidence of such actions shall have been provided to the Manager.
(mj) If requested by the Manager, the Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the chief financial officer or similar officer of the Company, dated as of such date, in form and substance satisfactory to the Manager providing “management comfort” with respect to certain financial information included in the Registration Statement and the Prospectus, as applicable.
(k) Prior to each Settlement Date, the Transaction Entities Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date Date, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Procter Shearman & Sterling LLP, counsel for the Manager, at 00 Xxxxx 000 Xxxxxxxxx Xxxxxx, XxxxxxXxx Xxxx, Xxxxxxxxxxxxx XX 00000, on each such date as provided in this Agreement.
Appears in 1 contract
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time and Settlement Date, (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement, if any, Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa3(a) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused the Company Counsel to furnish to the Manager, on each Representation Dateevery date specified in Section 4(l) of this Agreement, its opinionopinion and negative assurance statement, dated as of such date and addressed to the Manager, Manager in substantially in the form attached hereto as Exhibit A-1. Such A. In rendering such opinions, such counsel shall also have furnished may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas or the Federal laws of the United States, to the Managerextent they deem proper and specified in such opinion, on each Representation Date, a written statement, addressed upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Manager and dated (B) as to matters of such datefact, substantially to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the form attached hereto as Exhibit A-2Settlement Date.
(c) The Company shall have requested and caused Maryland Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager shall have received from Xxxxxxx Procter LLP, counsel for the Manager, on each Representation Date, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4(m) of this Agreement, a certificate of the Company, signed by the Chairman of the Board, Chief Executive Officer, Officer or the President or General Counsel, and the principal financial or accounting officer of the Company, dated as of such date, to the effect that the signer signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Transaction Entities Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities 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 date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Transaction EntitiesCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package, there has been no Material Adverse EffectEffect on the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus.
(gd) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p4(m) hereof and to the extent requested by the Manager and upon reasonable advance notice in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, which letters shall cover, without limitation, confirming that they are independent accountants within the various financial statements and disclosures contained or incorporated by reference in meaning of the Registration Statement, the Disclosure Package Act and the Prospectus Exchange Act and other matters ordinarily covered the respective applicable rules and regulations adopted by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634), as well as confirming Commission thereunder and that they have performed a review of any unaudited interim financial information of the Transaction Entities Company and included or incorporated by reference in the Registration Statement, the Disclosure Package Statement and the Prospectus in accordance with Statement on Auditing Standards XxNo. 000 100, and stating in effect that:
(XX 000X)i) in their opinion the audited financial statements and financial statement schedules and pro forma financial statements included or incorporated by reference in the Registration Statement and the Prospectus and reported on by them comply as to form with the applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and their respective subsidiaries; their limited review, in accordance with standards established under Statement on Auditing Standards No. References 100, of the unaudited interim financial information for the most recently reported quarter, carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and committees of the Company and their respective subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and their respective subsidiaries as to transactions and events subsequent to the end of such quarter, nothing came to their attention which caused them to believe that:
1. any unaudited financial statements included or incorporated by reference in the Registration Statement and the Prospectus do not comply as to form with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or incorporated by reference in this paragraph (g) include Quarterly Reports on Form 10-Q under the Exchange Act; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by reference in the Registration Statement and the Prospectus;
2. with respect to the period subsequent to the most recently reported quarter, there were any supplement thereto changes, at a specified date not more than five days prior to the date of the letter, in the long-term debt of the Company and their respective subsidiaries or capital stock of the Company or decreases in the stockholders’ equity of the Company as compared with the amounts shown on such consolidated balance sheets included or incorporated by reference in the Registration Statement and the Prospectus, or for the period from the end of such period to such specified date there were any decreases, as compared with the corresponding period in the preceding year, in net revenues or income before income taxes or in total or per share amounts of net income of the Company and their respective subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Manager; or
3. the information included or incorporated by reference in the Registration Statement and the Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), Item 302 (Supplementary Financial Information), Item 402 (Executive Compensation) and Item 503(d) (Ratio of Earnings to Fixed Charges) is not in conformity with the applicable disclosure requirements of Regulation S-K.
(iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth or incorporated by reference in the Registration Statement and the Prospectus agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation; and
(e) The Company shall have requested and caused its principal financial and accounting officer to have furnished to the Manager, on every date specified in Section 4(m) hereof and to the extent requested by the Manager in connection with any offering of the Shares, a certificate as to certain financial information included in the Disclosure Package and the Prospectus, in form and substance reasonably satisfactory to the Manager.
(hf) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (d) of this Section 6(g) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(ig) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(j) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) FINRA Financial Industry Regulatory Authority shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(lh) The Shares shall have been listed and admitted and authorized for trading on the NYSENASDAQ, and satisfactory evidence of such actions shall have been provided to the Manager.
(mi) Prior to each Settlement Date, the Transaction Entities Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Procter Xxxxxxxxx Xxxxx LLP, counsel for the Manager, at 00 000 Xxxxxxxxx Xxx., Xxxxx Xxxxxx0000, XxxxxxXxx Xxxx, Xxxxxxxxxxxxx XX 00000, on each such date as provided in this Agreement.
Appears in 1 contract
Samples: Continuous Offering Program Agreement (Opexa Therapeutics, Inc.)
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Partnership contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time and Settlement Dateof Delivery, (ii) to the performance by each of the Transaction Entities Partnership of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) 6.1 The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b); each Interim Prospectus Supplement, if any, shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa) with respect to any sale of this AgreementUnits; any other material required to be filed by the Company Partnership pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or or, to the knowledge of the Partnership, threatened.
(b) 6.2 The Company Partnership shall have requested furnished or caused to be furnished the opinions and caused the Company Counsel to furnish to the Managerletters from its counsel and accountants as set forth in Section 4, on each Representation Date, its opinion, dated the dates as of such date and addressed to the Manager, substantially set forth in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2Section 4.
(c) The Company shall have requested and caused Maryland Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) 6.3 The Manager shall have received from Xxxxxxx Procter LLPXxxxx Xxxxx L.L.P., counsel for the Manager, an opinion as set forth in Section 4, on each Representation Date, such opinion or opinions, dated the dates as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably requireset forth in Section 4, and the Company Partnership shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(f) 6.4 The Company General Partner shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4.11 of this Agreement, a certificate of the Company, signed by the Chairman of the Board, Chief Executive Officer, President or General Counsel, its principal executive officer and the principal financial or accounting officer of the Company, dated as of such date, to the effect that the signer of such certificate have has carefully examined the Registration Statement, the Disclosure Package Statement and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(ia) the representations and warranties of the Transaction Entities Partnership in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date;
(iib) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued by the Commission and no proceedings for that purpose have been instituted or, to the knowledge of the Transaction Entitiessuch officer’s knowledge, threatened; and;
(iiic) since the date of the most recent financial statements included or incorporated by reference in the Disclosure PackageProspectus, there has been no Material Adverse Effectmaterial adverse effect on the general affairs, except as set forth in or contemplated in the Disclosure Package and the Prospectus.
(g) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634), as well as confirming that they have performed a review of any unaudited interim financial information of the Transaction Entities included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards Xx. 000 (XX 000X). References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letter.
(h) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in Section 6(g) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earningsresults of operations, business business, properties, assets or properties prospects of the Company and its subsidiaries Teekay Entities, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and Prospectus, as amended or supplemented; and
d) on those Representation Dates when the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case opinions referred to in clause Sections 4.15, 4.16, 4.17 and 4.18 are not provided, that, to such officer’s knowledge, there has not been any material change in the facts on which the opinions in Sections 4.15, 4.16, 4.17 and 4.18 are based.
6.5 The Partnership shall have requested and caused Ernst & Young LLP to have furnished to the Manager, on every date specified in Section 4.20 hereof and to the extent reasonably requested by the Manager in connection with any offering of the Units, comfort letters, dated respectively as of such date, in form and substance reasonably satisfactory to the Manager.
6.6 The Partnership shall have requested and caused KPMG LLP to have furnished to the Manager, on every date specified in Section 4.20 hereof and to the extent reasonably requested by the Manager in connection with any offering of the Units, comfort letters, dated respectively as of such date, in form and substance reasonably satisfactory to the Manager
6.7 Subsequent to the respective dates as of which information is disclosed in the Registration Statement and the Prospectus, except as otherwise stated therein, there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in Sections 6.5 or 6.6 or (ii) aboveany adverse change, isor any development involving a prospective adverse change that would reasonably be expected to have a Material Adverse Effect, which, in the sole judgment Manager’s opinion, would materially and adversely affect the market for Units.
6.8 Since the date of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with most recent financial statements included in the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(j) Between the Execution Time and the time of any sale of Shares through the ManagerProspectus, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities of the Partnership by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) 6.9 FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(l) 6.10 The Shares Units shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager.
(m) 6.11 Prior to each Settlement DateDate and Time of Delivery, as applicable, the Transaction Entities Partnership shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company Partnership in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at to the office of Xxxxxxx Procter LLPXxxxx Xxxxx L.L.P., counsel for the Manager, at 00 Xxxxx One Shell Plaza, 000 Xxxxxxxxx Xxxxxx, XxxxxxXxxxxxx, Xxxxxxxxxxxxx Xxxxx 00000, or electronically to Xxxxx Xxxxx L.L.P. at an address provided by it to the Partnership or its counsel, on each such date as provided in this Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (Teekay LNG Partners L.P.)
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time and Settlement Dateof Delivery, (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b); each Interim Prospectus Supplement, if any, shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa) with respect to any sale of this AgreementOffered Units; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused the Company Counsel to furnish to the Manager, on each Representation Dateevery date specified in Section 4(k) of this Agreement, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2.A.
(c) The Company shall have requested and caused Maryland Counsel, the General Counsel of the Company to furnish to the Manager, on each Representation Dateevery date specified in Section 4(k) of this Agreement, its his opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, Canadian Counsel to furnish to the Manager, on each Representation Dateevery date specified in Section 4(k) of this Agreement, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager shall have received from Xxxxxxx Procter LLPXxxxx Xxxxx L.L.P., counsel for the Manager, on each Representation Dateevery date specified in Section 4(k) of this Agreement, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the SharesOffered Units, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4(k) of this Agreement, a certificate of the Company, Company signed by the Chairman of the Board, its Chief Executive Officer and its Chief Financial Officer, President or General Counsel, and the principal financial or accounting officer of the Company, dated as of such date, to the effect stating that the signer each of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and them severally represents that:
(i) the representations representations, warranties and warranties agreements of the Transaction Entities Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date date, and the Transaction Entities Company has complied with all the its agreements contained herein and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings or examination for that purpose have been instituted or, to the knowledge of the Transaction Entitiessuch officers, threatened;
(iii) such officer has carefully examined the Registration Statement, the Prospectus and the Disclosure Package, and, in such officer’s opinion, (A)(1) the Registration Statement, as of the most recent Effective Date, (2) the Prospectus, as of its date and on the applicable Settlement Date or Time of Delivery, and (3) the Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the most recent Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth; and
(iiiiv) since the date respective dates as of the most recent financial statements included or incorporated by reference which information is given in the Disclosure PackageRegistration Statement, there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the ProspectusProspectus (exclusive of any amendment or supplement thereto), there has not been any development that resulted in a Material Adverse Effect or any development that could reasonably be expected to result in a material adverse effect on the condition (financial or otherwise), prospects, results of operations, stockholders’ or members’ equity or business of the Company and its Subsidiaries taken as a whole, whether or not arising in the ordinary course of business.
(g) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p4(k) hereof and to the extent requested by the Manager in connection with any offering of the SharesOffered Units, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance reasonably satisfactory to the Manager, (i) confirming that they are independent registered public accountants within the meaning of the Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and (ii) stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which letters shall cover, without limitation, the various specified financial statements and disclosures contained or incorporated by reference information is given in the Registration Statement, the Disclosure Package and the Prospectus Prospectus, as of a date not more than three days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634), as well as confirming that they have performed a review of any unaudited interim financial information of the Transaction Entities included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards Xx. 000 (XX 000X). References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letterofferings.
(h) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (i) of this Section 6(g) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares Offered Units as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(j) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(lj) The Shares Offered Units shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager.
(mk) The Common Units are an Actively Traded Security on the date of determination of the offering price of any Offered Units.
(l) Prior to each Settlement DateDate and Time of Delivery, as applicable, the Transaction Entities Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Procter LLPXxxxx Xxxxx L.L.P., counsel for the Manager, at 00 Xxxxx 000 Xxxxxxxxx Xxxxxx, XxxxxxXxxxxxx, Xxxxxxxxxxxxx Xxxxx 00000, or electronically if agreed to by the parties, on each such date as provided in this Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (Niska Gas Storage Partners LLC)
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time and Settlement Dateof Delivery, (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) 6.1 The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission shall have been filed in the manner and within the time period required by Rule 424(b); each Interim Prospectus Supplement, if any, shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa) with respect to any sale of this AgreementShares; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or or, to the knowledge of the Company, threatened.
(b) 6.2 The Company shall have requested furnished or caused to be furnished the opinions and caused the Company Counsel to furnish to the Managerletters from its counsel and accountants as set forth in Section 4, on each Representation Date, its opinion, dated the dates as of such date and addressed to the Manager, substantially set forth in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2Section 4.
(c) The Company shall have requested and caused Maryland Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) 6.3 The Manager shall have received from Xxxxxxx Procter Cravath, Swaine & Xxxxx LLP, counsel for the Manager, an opinion as set forth in Section 4, on each Representation Date, such opinion or opinions, dated the dates as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably requireset forth in Section 4, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(f) The 6.4 Each of the Manager and the Company shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4.13 of this Agreement, a certificate of the Company, signed by the Chairman of the Board, Chief Executive Officer, President or General Counsel, its principal executive officer and the principal financial or accounting officer of the Company, dated as of such date, to the effect that the signer of such certificate have has carefully examined the Registration Statement, the Disclosure Package Statement and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(ia) the representations and warranties of the Transaction Entities Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities 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 date;
(iib) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued by the Commission and no proceedings for that purpose have been instituted or, to the knowledge of the Transaction Entitiessuch officer’s knowledge, threatened; and;
(iiic) since the date of the most recent financial statements included or incorporated by reference in the Disclosure PackageProspectus, there has been no Material Adverse Effectmaterial adverse effect on the general affairs, except as set forth in or contemplated in the Disclosure Package and the Prospectus.
(g) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634), as well as confirming that they have performed a review of any unaudited interim financial information of the Transaction Entities included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards Xx. 000 (XX 000X). References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letter.
(h) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in Section 6(g) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earningsresults of operations, business business, properties, assets or properties prospects of the Company and its subsidiaries subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto); and
(d) on those Representation Dates when the effect of which, in any case opinions referred to in clause Sections 4.16, 4.18 and 4.19 are not provided, that, to such officer’s knowledge, there has not been any material change in the facts on which the opinions in Sections 4.16, 4.18 and 4.19 are based.
6.5 The Company shall have requested and caused KPMG LLP to have furnished to the Manager, on every date specified in Section 4.21 hereof and to the extent reasonably requested by the Manager in connection with any offering of the Shares, comfort letters, dated respectively as of such date, in form and substance reasonably satisfactory to the Manager.
6.6 Subsequent to the respective dates as of which information is disclosed in the Registration Statement and the Prospectus, except as otherwise stated therein, there shall not have been (i) any adverse change or decrease specified in the letter or letter referred to in Sections 6.5 or (ii) aboveany adverse change, isor any development involving a prospective adverse change that would reasonably be expected to have a Material Adverse Effect, which, in the sole judgment Manager’s opinion, would materially and adversely affect the market for Shares.
6.7 Since the date of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with most recent financial statements included in the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(j) Between the Execution Time and the time of any sale of Shares through the ManagerProspectus, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes in Section 3(a)(62) of Rule 436(g) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) 6.8 FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(l) 6.9 The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager.
(m) 6.10 Prior to each Settlement DateDate and Time of Delivery, as applicable, the Transaction Entities Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at to the office of Xxxxxxx Procter Xxxxxx & Xxxxx LLP, counsel for the Manager, at 00 Xxxxx 000 Xxxxxx Xxxxxx, XxxxxxXxx Xxxx, Xxxxxxxxxxxxx XX 00000, or electronically to Cravath, Swaine & Xxxxx at an address provided by it to the Company or its counsel, on each such date as provided in this Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (Teekay Tankers Ltd.)
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company and the Partnership contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time and Settlement Dateof Delivery, (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement, if any, Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa3(a)(viii) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been 32 filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused the Company Counsel Counsel, to furnish to the Manager, on each Representation Dateevery date specified in Section 4(k) of this Agreement, its opinionan opinion of Company Counsel addressed to the Manager in the form of Exhibits A-1 and A-2, dated as of such date and a letter from Xxxxxx & Xxxxxxxx LLP, addressed to the Manager, substantially in the form attached hereto as of Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2A-3.
(c) The Company shall have requested and caused Maryland Senior Corporate Counsel, to furnish to the Manager, on each Representation Dateevery date specified in Section 4(k) of this Agreement, its opinionan opinion of Senior Corporate Counsel addressed to the Manager in the form of Exhibit B
(d) The Company shall have requested and caused Senior Corporate Counsel, to furnish to the Manager, on every date specified in Section 4(k) of this Agreement, an opinion of Maryland Counsel addressed to the Manager in the form of Exhibit C.
(e) The Manager shall have received on every date specified in Section 4(k) of this Agreement, the favorable opinion of Clifford Chance US LLP, counsel for the Managers, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager shall have received from Xxxxxxx Procter LLP, counsel for the Manager, on each Representation Date, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(f) The Company and the Partnership shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4(k) of this Agreement a certificate of its Chief Financial Officer and its Chief Accounting Officer, in the case of the Company, and of its general partner, in the case of the Partnership, in the form attached as Exhibit D hereto. The Managers shall have received from the Company and the Partnership on every date specified in Section 4(k), a certificate of the Company, signed by the Chairman of the Board, its Chief Executive Financial Officer and its Chief Accounting Officer, President or General Counsel, and in the principal financial or accounting officer case of the Company, dated as of such dateand its general partner, to in the effect that the signer of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties case of the Transaction Entities in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted orPartnership, to the knowledge of the Transaction Entities, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package, there has been no Material Adverse Effect, except form attached as set forth in or contemplated in the Disclosure Package and the Prospectus.Exhibit E hereto
(g) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p4(n) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered a comfort letter addressed to the Manager), dated as of such date, Managers in the form and substance satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634), as well as confirming that they have performed a review of any unaudited interim financial information of the Transaction Entities included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards Xx. 000 (XX 000X). References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letterManagers.
(h) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any no material adverse change or decrease specified in the letter or letters referred to in Section 6(g) or (ii) any change, or any development involving reasonably expected to result in a prospective changematerial adverse change in the business, in properties, management, financial condition or affecting the condition (financial or otherwise), earnings, business or properties results of operations of the Company Company, the Partnership and its subsidiaries the Subsidiaries taken as a whole, whether whole shall occur or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) become known the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).. 33
(i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective post‑effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(j) No Prospectus or amendment or supplement to the Registration Statement or the Prospectus shall have been filed to which the Manager objects in writing
(k) Between the Execution Time and the time of any sale of Shares through the Manager, there (i) no stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings initiated under Section 8(d) or 8(e) of the Securities Act; (ii) the Registration Statement and all amendments thereto shall not have been any decrease contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) the Prospectus and amendments or supplements thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the rating of any light of the Company’s circumstances under which they are made, not misleading; (iv) no Disclosure Package, and no amendment or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or supplement thereto, shall include an untrue statement of a possible change material fact or omit to state a material fact necessary in any such rating that does not indicate order to make the direction statements therein, in the light of the possible changecircumstances under which they are made, not misleading; and (v) none of the Issuer Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading.
(kl) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(lm) The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager.
(mn) The Articles Supplementary shall have been accepted for record by the MSDAT and shall be effective under the Maryland REIT Law.
(o) Prior to each Settlement DateDate and Time of Delivery, as applicable, the Transaction Entities Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Procter Clifford Chance US LLP, counsel for the Manager, at 00 Xxxxx XxxxxxXxxx 00xx Xx., XxxxxxXxx Xxxx, Xxxxxxxxxxxxx Xxx Xxxx 00000, on each such date as provided in this Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (Hersha Hospitality Trust)
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time and Settlement Date, (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement, if any, Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa4(p) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the Act shall have been instituted or threatenedthreatened by the Commission; no stop order suspending or preventing the use of the Disclosure Package, Prospectus or any Issuer Free Writing Prospectus shall have been instituted or, to the Company’s knowledge, threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction.
(b) The Company shall have requested and caused the Company Counsel to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, an opinion and a negative assurance letter, each Representation Date, its opinion, dated as of such date in the form and addressed substance reasonably satisfactory to the Manager, substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2.
(c) The Company shall have requested and caused Maryland Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager shall have received from Xxxxxx Xxxxxxx Procter Xxxxx LLP, counsel for the Manager, on each Representation Dateevery date specified in Section 4(m) of this Agreement, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(fd) The Company shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chairman chief executive officer or the President of the Board, Chief Executive Officer, President or General CounselCompany, and of the principal chief financial or chief accounting officer of the Company, dated as of such date, to the effect that the signer signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Transaction Entities in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities 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 date;
(ii) received no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued Statement, and no proceedings for that such purpose or pursuant to Section 8A of the Act have been instituted or, to the knowledge of Company’s knowledge, threatened by the Transaction Entities, threatened; andCommission;
(iiiii) since the date of the most recent financial statements included or incorporated by reference in the Prospectus and the Disclosure Package, there has been no event or condition of a type described in Section 2(k) hereof (a “Material Adverse EffectChange”), except as set forth in or contemplated in the Disclosure Package and the Prospectus;
(iii) the representations, warranties and covenants set forth in Section 2 of this Agreement are true and correct with the same force and effect as though expressly made on and as of such date; and
(iv) the Company and its subsidiaries have complied with all the agreements hereunder and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such date.
(ge) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p4(n) hereof to the extent financial information audited or reviewed by such firms is included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus, as amended and supplemented to the date of such letter, and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634)6101: Letters for Underwriters and Certain Other Requesting Parties, as well as confirming that they have performed a review of any unaudited interim financial information of the Transaction Entities Company included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards XxNo. 000 (XX 000X)100. References to the Prospectus in this paragraph (ge) include any supplement thereto at the date of the letter.
(hf) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6(g) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of businessMaterial Adverse Change, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(ig) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if If applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(j) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(lh) The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the ManagerNASDAQ.
(mi) Prior to each Settlement Date, the Transaction Entities Company shall have furnished to the Designated Manager such further information, certificates and documents as the Designated Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date Date, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Procter LLP, counsel for the Manager, at 00 Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, on each such date as provided in this Agreement.
Appears in 1 contract
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time and Settlement Dateof Delivery, (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b); each Interim Prospectus Supplement, if any, shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa) with respect to any sale of this AgreementOffered Units; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused the Company Counsel to furnish to the Manager, on each Representation Dateevery date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2.A.
(c) The Company shall have requested and caused Maryland Counsel, the General Counsel or Senior Counsel of the Company to furnish to the Manager, on each Representation Dateevery date specified in Section 4(m) of this Agreement, its her opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager shall have received from Xxxxxx & Xxxxxxx Procter LLP, counsel for the Manager, on each Representation Dateevery date specified in Section 4(n) of this Agreement, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the SharesOffered Units, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(fe) The Company shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4(k) of this Agreement, a certificate of the Company, Company signed by the Chairman of the Board, its Chief Executive Officer and its Chief Financial Officer, President or General Counsel, and the principal financial or accounting officer of the Company, dated as of such date, to the effect stating that the signer each of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and them severally represents that:
(i) the representations representations, warranties and warranties agreements of the Transaction Entities Company in this Agreement Section 2 are true and correct on and as of such date with the same effect as if made on such date date, and the Transaction Entities Company has complied with all the its agreements contained herein in all material respects and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and issued; no proceedings or examination for that purpose have been instituted or, to the knowledge of the Transaction Entitiessuch officers, threatened; and the Commission has not notified the Company of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto;
(iii) such officer has carefully examined the Registration Statement, the Prospectus and the Disclosure Package, and, in such officer’s opinion, (A)(1) the Registration Statement, as of the most recent Effective Date, (2) the Prospectus, as of its date and on the applicable Settlement Date or Time of Delivery, and (3) the Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the most recent Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth; and
(iiiiv) since the date respective dates as of the most recent financial statements included or incorporated by reference in the Disclosure Package, there has been no Material Adverse Effect, except as set forth in or contemplated which information is given in the Disclosure Package and the Prospectus, there has not been any development that resulted in a Material Adverse Effect or any development that could reasonably be expected to result in a material adverse effect on the condition (financial or otherwise), results of operations, stockholders’ or members’ equity or business of the Company and its Subsidiaries taken as a whole, whether or not arising in the ordinary course of business.
(f) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(o) hereof and to the extent requested by the Manager in connection with any offering of the Offered Units, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance reasonably satisfactory to the Manager, (i) confirming that they are independent registered public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S X of the Commission and (ii) stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Disclosure Package, as of a date not more than three days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(g) The Company shall have requested and caused the Accountants Reserve Engineer to have furnished to the Manager, on every date specified in Section 4(p) hereof and to the extent requested by the Manager in connection with any offering of the SharesOffered Units, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance reasonably satisfactory to the Manager, which letters shall cover, without limitation, covering certain matters relating to information about the various financial statements and disclosures contained or incorporated by reference reserves of the Company presented in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634), as well as confirming that they have performed a review of any unaudited interim financial information of the Transaction Entities included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards Xx. 000 (XX 000X). References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letterProspectus.
(h) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6(g) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares Offered Units as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) The Company shall have paid the required Commission filing fees relating to the Shares Offered Units within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(j) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(k) Between the Execution Time and the time of any sale of Shares Offered Units through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes such term is used in Section 15E of Rule 436(g) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(l) The Shares Offered Units shall have been listed and admitted and authorized for trading on the NYSENasdaq, and satisfactory evidence of such actions shall have been provided to the Manager.
(m) Prior to each Settlement DateDate and Time of Delivery, as applicable, the Transaction Entities Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxx & Xxxxxxx Procter LLP, counsel for the Manager, at 00 000 Xxxxx XxxxxxXxx. Xxxxx 0000, XxxxxxXxxxxxx, Xxxxxxxxxxxxx Xxxxx 00000, or electronically if agreed to by the parties, on each such date as provided in this Agreement.
Appears in 1 contract
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement with respect to a Placement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time and Settlement DateTime of Delivery, (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any Any supplement thereto, to the Prospectus required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b); each Interim Prospectus Supplement, if any, shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa) with respect to any sale of this AgreementShares; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused the Company Counsel Counsel, to furnish to the Manager, on each Representation Datethe dates specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished and substance reasonably satisfactory to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2.
(c) The Company shall have requested and caused Maryland Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager shall have received from Xxxxxxx Procter LLPXxxxx Xxxx & Xxxxxxxx, counsel for the Manager, on each Representation Dateevery date specified in Section 4(m) of this Agreement, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(fd) The Company shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chairman of the Board, the President, the Chief Executive Officer, President Officer or General Counsel, and the principal financial or principal accounting officer of the Company, dated as of such date, to the effect that the signer signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Transaction Entities Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities 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 date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Transaction EntitiesCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package, there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus.
(ge) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p4(m) hereof, the Comfort Letter that is required to be delivered pursuant to Section 4(m) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance reasonably satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634), as well as confirming that they have performed a review of any unaudited interim financial information of the Transaction Entities included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards Xx. 000 (XX 000X). References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letter.
(hf) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease in the financial statement items specified in the letter or letters referred to in paragraph (e) of this Section 6(g) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(jg) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(kh) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(li) The Shares shall have been listed and admitted and authorized for trading on the NYSENasdaq, and satisfactory evidence of such actions shall have been provided to the Manager.
(mj) Prior to each Settlement DateDate and Time of Delivery, as applicable, the Transaction Entities Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone, facsimile or electronic mail and confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Procter Xxxxx Xxxx & Xxxxxxxx LLP, counsel for the Manager, at 00 Xxxxx 000 Xxxxxxxxx Xxxxxx, XxxxxxXxx Xxxx, Xxxxxxxxxxxxx Xxx Xxxx 00000, on each such date as provided in this Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (Millendo Therapeutics, Inc.)
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time and Settlement Dateof Delivery, (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) 6.1 The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b); each Interim Prospectus Supplement, if any, shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa) with respect to any sale of this AgreementShares; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or or, to the knowledge of the Company, threatened.
(b) 6.2 The Company shall have requested furnished or caused to be furnished the opinions and caused the Company Counsel to furnish to the Managerletters from its counsel and accountants as set forth in Section 4, on each Representation Date, its opinion, dated the dates as of such date and addressed to the Manager, substantially set forth in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2Section 4.
(c) The Company shall have requested and caused Maryland Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) 6.3 The Manager shall have received from Xxxxxxx Procter LLPXxxxx Xxxxx L.L.P., counsel for the Manager, an opinion as set forth in Section 4.19, on each Representation Date, such opinion or opinions, dated the dates as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably requireset forth in Section 4, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(f) 6.4 The Company shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4.11 of this Agreement, a certificate of the Company, signed by the Chairman of the Board, Chief Executive Officer, President its principal executive officer or General Counsel, and the principal financial or accounting officer of the Company, dated as of such date, to the effect that the signer of such certificate have has carefully examined the Registration Statement, the Disclosure Package Statement and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(ia) the representations and warranties of the Transaction Entities Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities 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 date;
(iib) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued by the Commission and no proceedings for that purpose have been instituted or, to the knowledge of the Transaction Entitiessuch officer’s knowledge, threatened; and;
(iiic) since the date of the most recent financial statements included or incorporated by reference in the Disclosure PackageProspectus, there has been no Material Adverse Effectmaterial adverse effect on the general affairs, except as set forth in or contemplated in the Disclosure Package and the Prospectus.
(g) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634), as well as confirming that they have performed a review of any unaudited interim financial information of the Transaction Entities included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards Xx. 000 (XX 000X). References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letter.
(h) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in Section 6(g) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earningsresults of operations, business business, properties, assets or properties prospects of the Company and its subsidiaries Teekay Entities, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and Prospectus, as amended or supplemented; and
d) on those Representation Dates when the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case opinions referred to in clause Section 4.14 through Section 4.18 are not provided, that, to such officer’s knowledge, there has not been any material change in the facts on which the opinions in Section 4.14 through Section 4.18 are based.
6.5 The Company shall have requested and caused KPMG LLP to have furnished to the Manager, on every date specified in Section 4.20 hereof and to the extent reasonably requested by the Manager in connection with any offering of the Shares a comfort letter, dated respectively as of such date, in form and substance reasonably satisfactory to the Manager.
6.6 Subsequent to the respective dates as of which information is disclosed in the Registration Statement and the Prospectus, except as otherwise stated therein, there shall not have been (i) any adverse change or decrease specified in the letter referred to in Section 6.5 or (ii) aboveany adverse change, isor any development involving a prospective adverse change that would reasonably be expected to have a Material Adverse Effect, which, in the sole judgment of Manager’s opinion, would materially and adversely affect the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto)market for Shares.
(i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(j) 6.7 Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) 6.8 FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(l) 6.9 The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager.
(m) 6.10 Prior to each Settlement DateDate and Time of Delivery, as applicable, the Transaction Entities Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at to the office of Xxxxxxx Procter LLPXxxxx Xxxxx L.L.P., counsel for the Manager, at 00 000 X Xxxxxx XX, Xxxxxxxxxx, XX 00000, or electronically to Xxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000Xxxxx L.L.P. at an address provided by it to the Company or its counsel, on each such date as provided in this Agreement.
Appears in 1 contract
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time and Settlement Dateof Delivery, (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement, if any, Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa3(a) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused various counsel for the Company Counsel Company, including BVI counsel, PRC or in-house counsel and US counsel as appropriate, to furnish to the Manager, on each Representation Dateevery date specified in Section 4 of this Agreement, its opiniontheir respective opinions and negative assurance statements, unless waived by the Manager, dated as of such date and addressed to the Manager, Manager in substantially in the form forms attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2.A.
(c) The Company shall have requested In rendering such opinions, such counsel may rely (A) to the extent they deem proper and caused Maryland Counselspecified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are reasonably satisfactory to counsel for the Manager and (B) as to matters of fact, to furnish the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Manager, on each Representation Prospectus in this paragraph (c) shall also include any supplements thereto at the Settlement Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B..
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager shall have received from Xxxxxxx Procter LLP, counsel for the Manager, on each Representation Date, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4 of this Agreement, a certificate of the Company, signed by the Chairman of the Board, Chief Executive Officer, Officer or the President or General Counsel, and the principal financial or accounting officer of the Company, dated as of such date, to the effect that the signer signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Transaction Entities Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities 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 date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Transaction EntitiesCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package, there has been no Material Adverse EffectEffect on the condition (financial or otherwise), earnings, business or properties of the Company and its Significant Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus.
(ge) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p) 4 hereof and to the extent as requested by the Manager upon reasonable advance notice in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, which letters shall cover, without limitation, confirming that they are independent accountants within the various financial statements and disclosures contained or incorporated by reference in meaning of the Registration Statement, the Disclosure Package Act and the Prospectus Exchange Act and other matters ordinarily covered the respective applicable rules and regulations adopted by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634), as well as confirming Commission thereunder and that they have performed a review of any unaudited consolidated interim financial information of the Transaction Entities Company and its subsidiaries and included or incorporated by reference in the Registration Statement, the Disclosure Package Statement and the Prospectus in accordance with Statement on Auditing Standards XxNo. 000 100, and stating in effect that:
(XX 000X)i) in their opinion the audited consolidated financial statements and financial statement schedules and pro forma financial statements included or incorporated by reference in the Registration Statement and the Prospectus and reported on by them comply as to form with the applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted by the Commission;
(ii) on the basis of a reading of the latest unaudited consolidated financial statements made available by the Company and its consolidated subsidiaries; their limited review, in accordance with standards established under Statement on Auditing Standards No. References 100, of the unaudited consolidated interim financial information for the most recent quarter for which the Company has filed unaudited financial statements on Form 6-K, carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and committees of the Company; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its consolidated subsidiaries as to transactions and events subsequent to the end of the most recent quarter for which the Company has filed unaudited consolidated financial statements on Form 6-K, nothing came to their attention which caused them to believe that:
1. any consolidated unaudited financial statements included or incorporated by reference in the Registration Statement and the Prospectus do not comply as to form with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or incorporated by reference under the Exchange Act; and said unaudited financial statements are not in this paragraph (g) include conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by reference in the Registration Statement and the Prospectus;
2. with respect to the period subsequent to the most recent quarter for which the Company has filed unaudited consolidated financial statements on Form 6-K, there were any supplement thereto changes, at a specified date not more than five days prior to the date of the letter, in the long-term debt of the Company and its consolidated subsidiaries or capital stock of the Company or decreases in the stockholders’ equity of the Company as compared with the amounts shown on such consolidated balance sheets included or incorporated by reference in the Registration Statement and the Prospectus, or for the period from the end of such period to such specified date there were any decreases, as compared with the corresponding period in the preceding year, in net revenues or income before income taxes or in total or per share amounts of net income of the Company and its consolidated subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Manager; or
3. the selected financial data information included or incorporated by reference in the Registration Statement and the Prospectus is not in conformity with the applicable disclosure requirements of Form 20-F.
(iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its consolidated subsidiaries) set forth or incorporated by reference in the Registration Statement and the Prospectus and in Exhibit 12 to the Registration Statement, agrees with the accounting records of the Company and its consolidated subsidiaries, excluding any questions of legal interpretation; and
(f) The Company shall have requested and caused its Chief Financial Officer to have furnished to the Manager, on every date specified in Section 4 hereof and to the extent requested by the Manager in connection with any offering of the Shares, a certificate as to certain financial information included in the Disclosure Package and the Prospectus, in form and substance reasonably satisfactory to the Manager.
(hg) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease in the amount of the earnings of the Company on a consolidated basis specified in the letter or letters referred to in paragraph (d) of this Section 6(g) 6, or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries Significant Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(ih) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(ji) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(k) FINRA The Financial Industry Regulatory Authority shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(lj) The Shares shall have been listed and admitted and authorized for trading on the NYSETrading Market, and satisfactory evidence of such actions shall have been provided to the Manager.
(mk) Prior to each Settlement DateDate and Time of Delivery, as applicable, the Transaction Entities Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request.
(l) At least three (3) full Trading Days prior to the date that a Draw Down Notice is delivered, the Company shall have delivered to the Manager written notice of its intention to deliver an order for the sale of the Shares. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Procter Xxxxxxxxx Xxxxx LLP, counsel for the Manager, at 00 000 Xxxxxxxxx Xxx., Xxxxx Xxxxxx0000, XxxxxxXxx Xxxx, Xxxxxxxxxxxxx XX 00000, on each such date as provided in this Agreement.
Appears in 1 contract
Samples: Continuous Offering Program Agreement (Origin Agritech LTD)
Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time and Settlement Date, (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement, if any, Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa4(t) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the Act shall have been instituted or threatenedor, to the knowledge of the Company, be threatened by the Commission.
(b) The Company shall have requested and caused the Company Counsel to furnish to the Manager, on each Representation Dateevery date specified in Section 4(l) of this Agreement subject to Section 4(r), its opinion, dated as of such date a written opinion and addressed disclosure letter in form and substance reasonably satisfactory to the Manager, substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2.
(c) The Company shall have requested and caused Maryland Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager shall have received from Xxxxxxx Goodwin Procter LLP, counsel for the Manager, on each Representation Dateevery date specified in Section 4(m) of this Agreement subject to Section 4(r), such opinion or opinionsopinions and disclosure letter or letters, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(fd) The Company shall have requested and caused IP Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement subject to Section 4(r), such written opinions, dated as of such date and addressed to the Manager, with respect to intellectual property matters, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.
(e) The Company shall have furnished or caused to be furnished to the Manager, on each Representation Dateevery date specified in Section 4(k) of this Agreement subject to Section 4(r), a certificate of the Company, signed by the Chairman chief executive officer or the President of the Board, Chief Executive Officer, President or General CounselCompany, and by the principal chief financial or chief accounting officer of the Company, dated as of such date, to the effect that the signer signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Transaction Entities in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities 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 date;
(ii) received no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued Statement, and no proceedings for that such purpose or pursuant to Section 8A of the Act have been instituted or, to the knowledge of Company’s knowledge, are threatened by the Transaction Entities, threatened; andCommission;
(iiiii) since the date of the most recent financial statements included or incorporated by reference in the Prospectus and the Disclosure Package, there has been no event or condition of a type described in Section 2(l) hereof (a “Material Adverse EffectChange”), except as set forth in or contemplated in the Disclosure Package and the Prospectus;
(iii) the representations, warranties and covenants set forth in Section 2 of this Agreement are true and correct with the same force and effect as though expressly made on and as of such date; and
(iv) the Company has complied with all the agreements hereunder and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such date.
(gf) The Company shall have requested and caused the Accountants each of PwC and Deloitte to have furnished to the Manager, on every date specified in Section 4(p4(o) hereof and to the extent requested by the Manager in connection with any offering of the Shareshereof, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance reasonably satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634)AS 6101, as well as confirming that they have performed a review of any unaudited interim financial information of the Transaction Entities Company included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards Xx. 000 (XX 000X)AS 4105. References to the Prospectus in this paragraph (gf) include any supplement thereto at the date of the letter.
(hg) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in Section 6(g) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of businessMaterial Adverse Change, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, which is, in the sole reasonable judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(j) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(kh) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(li) The Shares shall have been listed and admitted and authorized for trading on the NYSENasdaq, and satisfactory evidence of such actions shall have been provided to the Manager.
(mj) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement (beginning with the filing by the Company with the Commission of its Annual Report on Form 10-K for the fiscal year ended December 31, 2024), a certificate of the Company, signed by the chief financial officer or similar officer of the Company, dated as of such date, in form and substance satisfactory to the Manager providing “management comfort” with respect to certain financial information included in the Registration Statement and the Prospectus, as applicable.
(k) Prior to each Settlement Date, the Transaction Entities Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date Date, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Goodwin Procter LLP, counsel for the Manager, at 00 Xxxxx XxxxxxThe New York Times Building, Xxxxxx620 Eighth Avenue, Xxxxxxxxxxxxx 00000New York, New York 10018, on each such date as provided in this Agreement.
Appears in 1 contract
Conditions to the Obligations of the Manager. The obligations of the Manager Managers under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Transaction Entities Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time and Settlement Dateof Delivery, (ii) to the performance by each of the Transaction Entities Company of its obligations hereunder, hereunder and (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (iv) the following additional conditions:
(a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement, if anyas applicable, shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa4(w) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused the Company Counsel and In-House Counsel, to furnish to the Managersuch Managers, on each Representation Dateevery date specified in Section 4(l) of this Agreement, its opiniontheir opinions and negative assurance letter, as applicable, dated as of such date and addressed to the Managersuch Managers, substantially in the form attached hereto as Exhibit A-1. Such counsel shall also have furnished and substance satisfactory to the Manager, on each Representation Date, a written statement, addressed to the Manager and dated as of such date, substantially in the form attached hereto as Exhibit A-2Managers.
(c) The Company shall have requested and caused Maryland Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B.
(d) The Company shall have requested and caused Tax Counsel, to furnish to the Manager, on each Representation Date, its opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit C.
(e) The Manager Such Managers shall have received from Xxxxxxx Procter LLP, counsel for the ManagerManagers’ Counsel, on each Representation Dateevery date specified in Section 4(m) of this Agreement, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably requiresuch Managers, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters.
(fd) The Company shall have furnished or caused to be furnished to the Managersuch Managers, on each Representation Dateevery date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chairman of the Board, Chief Executive Officer, President or General Counsel, and the principal financial or accounting officer Chief Financial Officer of the Company, dated as of such date, to the effect that the signer of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that:
(i) the representations and warranties of the Transaction Entities Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities 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 date;
(ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Transaction EntitiesCompany’s knowledge, threatened; and
(iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package, there has been no Material Adverse Effectmaterial adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus.
(ge) The Company shall have requested and caused the Accountants to have furnished to the Managersuch Managers, on every date specified in Section 4(p4(n) hereof and to the extent requested by the Manager such Managers in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the ManagerManagers), dated as of such date, in form and substance satisfactory to the Managersuch Managers, which letters shall cover, without limitation, the various financial containing statements and disclosures contained or incorporated by reference information of the type ordinarily included in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in respect to the Statement on Auditing Standards No. 72 (AU 634), as well as confirming that they have performed a review of any unaudited interim financial statements and certain financial information of the Transaction Entities included or incorporated by reference in the Registration Statement, the Disclosure Package Prospectus and the Prospectus in accordance with Statement on Auditing Standards Xx. 000 (XX 000X). References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letterDisclosure Package.
(hf) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6(g) 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Managersuch Managers, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).
(ig) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b).
(j) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change.
(kh) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement.
(li) The Shares shall have been listed and admitted and authorized for trading on the NYSENasdaq, and satisfactory evidence of such actions shall have been provided to such Managers, to the Managerextent this Agreement and the transactions contemplated hereunder require the filing of a Listing of Additional Shares Notification form with Nasdaq.
(mj) Prior to each Settlement DateDate and Time of Delivery, as applicable, the Transaction Entities Company shall have furnished to the Manager such Managers such further information, certificates and documents as the Manager such Managers may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager Managers and counsel for the ManagerManagers, this Agreement and all obligations of the applicable Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Managersuch Manager with respect to itself only. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. Following any such cancellation by a Manager, this Agreement shall remain in effect as to the other Manager that has not exercised its right to cancel this Agreement pursuant to this Section 6 and any obligations and rights of the Managers under this Agreement shall be satisfied by or afforded to only such other Manager. The documents required to be delivered by this Section 6 shall be delivered at the office of Xxxxxxx Procter Milbank LLP, counsel for the ManagerManagers, at 00 Xxxxx XxxxxxXxxxxx Xxxxx, XxxxxxNew York, Xxxxxxxxxxxxx 00000, New York 10001 on each such date as provided in this Agreement.
Appears in 1 contract
Samples: Equity Distribution Agreement (United Airlines, Inc.)
