Issuance and Sale of Notes. 1.1 While (i) the Issuer has and shall have no obligation to sell the Notes to the Dealer or to permit the Dealer to arrange any sale of the Notes for the account of the Issuer, and (ii) the Dealer has and shall have no obligation to purchase the Notes from the Issuer or to arrange any sale of the Notes for the account of the Issuer, the parties hereto agree that in any case where the Dealer purchases Notes from the Issuer, or arranges for the sale of Notes by the Issuer, such Notes will be purchased or sold by the Dealer in reliance on the representations, warranties, covenants and agreements of the Issuer and the Guarantor contained herein or made pursuant hereto and on the terms and conditions and in the manner provided herein. 1.2 So long as this Agreement shall remain in effect, the Issuer shall not, without the consent of the Dealer, offer, solicit or accept offers to purchase, or sell, any Notes or notes substantially similar to the Notes in reliance upon the exemption from registration under the Securities Act contained in Section 3(a)(3) thereof, except (a) in transactions with one or more dealers which may from time to time after the date hereof become dealers with respect to the Notes by executing with the Issuer one or more agreements substantially similar to this Agreement, of which the Issuer hereby undertakes to provide the Dealer prompt notice, (b) in transactions with the other dealers listed on the Addendum hereto, which are executing agreements with the Issuer substantially similar to this Agreement contemporaneously herewith or (c) directly on its own behalf in transactions with persons other than broker-dealers with respect to which no commission is payable. 1.3 The Notes shall be in a minimum denomination or minimum amount, whichever is applicable, of $100,000 or integral multiples of $1,000 in excess thereof, will bear such interest rates, if interest bearing, or will be sold at such discount from their face amounts, as shall be agreed upon by the Dealer and the Issuer; shall have a maturity not exceeding 270 days from the date of issuance (exclusive of days of grace); and shall not contain any provision for extension, renewal or automatic "rollover." The Notes shall be issued in the ordinary course of the Issuer's business. 1.4 The authentication, delivery and payment of the Notes shall be effected in accordance with the Issuing and Paying Agency Agreement and the Notes shall be either individual bearer physical certificates or represented by book-entry Notes registered in the name of DTC or its nominee in the form or forms annexed to the Issuing and Paying Agency Agreement. 1.5 If the Issuer and the Dealer shall agree on the terms of the purchase of any Note by the Dealer or the sale of any Note arranged by the Dealer (including, but not limited to, agreement with respect to the date of issue, purchase price, principal amount, maturity and interest rate (in the case of interest-bearing Notes) or discount thereof (in the case of Notes issued on a discount basis), and appropriate compensation for the Dealer's services hereunder) pursuant to this Agreement, the Issuer shall cause such Note to be issued and delivered in accordance with the terms of the Issuing and Paying Agency Agreement and payment for such Note shall be made by the purchaser thereof, either directly or through the Dealer, to the Issuer. Except as otherwise agreed, in the event that the Dealer is acting as an agent and a customer shall either fail to accept delivery of or make payment for a Note on the date fixed for settlement, the Dealer shall promptly notify the Issuer, and if the Dealer has theretofore paid the Issuer for the Note, the Issuer will promptly return such funds to the Dealer against its return of the Note to the Issuer, in the case of a certificated Note, and upon notice of such failure in the case of a book-entry Note. If such failure occurred for any reason other than default by the Dealer, the Issuer shall reimburse the Dealer on an equitable basis for the Dealer's loss of the use of such funds for the period such funds were credited to the Issuer's account.
Appears in 1 contract
Samples: Commercial Paper Dealer Agreement (Harrahs Entertainment Inc)
Issuance and Sale of Notes. 1.1 While The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through BRS the Company’s 8.125% Senior Notes due 2026 (ithe “Notes”) to be issued under an indenture dated as of February 12, 2021 (the “Base Indenture”), as supplemented by the First Supplemental Indenture dated as of February 12, 2021 (the “First Supplemental Indenture”, and as supplemented by the Second Supplemental Indenture to be dated as of April 1, 2021 (the “Second Supplemental Indenture”) and, together with the Base Indenture, the “Indenture”), between the Company and The Bank of New York Mellon Trust Company, N.A., as trustee (the “Trustee”), from time to time during the term of this Agreement (the “Placement Notes”); provided, however, that in no event shall the Company issue or sell through BRS such number of Placement Notes that (a) exceeds the number or dollar amount of Notes registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made or (b) the Issuer has and shall have no obligation aggregate principal amount of Notes authorized to sell be issued by the Notes board of directors of the Company (the “Board”) from time to time (the lesser of (a) or (b) the “Maximum Amount”). Notwithstanding anything to the Dealer or to permit the Dealer to arrange any sale of the Notes for the account of the Issuer, and (ii) the Dealer has and shall have no obligation to purchase the Notes from the Issuer or to arrange any sale of the Notes for the account of the Issuercontrary contained herein, the parties hereto agree that compliance with the limitations set forth in any case where this Section 1 on the Dealer purchases number of Placement Notes from issued and sold under this Agreement shall be the Issuer, or arranges for sole responsibility of the Company and that BRS shall have no obligation in connection with such compliance. The issuance and sale of Placement Notes by through BRS will be effected pursuant to the IssuerRegistration Statement (as defined below), such although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue any Placement Notes. The Placement Notes will be purchased or sold by the Dealer in reliance on the representationsissued to Cede & Co., warranties, covenants and agreements as nominee of the Issuer and Depository Trust Company (“DTC”) pursuant to a blanket letter of representations (the Guarantor contained herein “DTC Agreement”) to be dated on or made pursuant hereto and on the terms and conditions and in the manner provided herein.
1.2 So long as this Agreement shall remain in effect, the Issuer shall not, without the consent of the Dealer, offer, solicit or accept offers prior to purchase, or sell, any Notes or notes substantially similar to the Notes in reliance upon the exemption from registration under the Securities Act contained in Section 3(a)(3) thereof, except (a) in transactions with one or more dealers which may from time to time after the date hereof become dealers with respect to between the Notes by executing with the Issuer one or more agreements substantially similar to this Agreement, of which the Issuer hereby undertakes to provide the Dealer prompt notice, (b) in transactions with the other dealers listed on the Addendum hereto, which are executing agreements with the Issuer substantially similar to this Agreement contemporaneously herewith or (c) directly on its own behalf in transactions with persons other than broker-dealers with respect to which no commission is payable.
1.3 Company and DTC. The Notes shall be in a minimum denomination or minimum amount, whichever is applicable, of $100,000 or integral multiples of $1,000 in excess thereof, will bear such interest rates, if interest bearing, or Indenture will be sold at such discount from their face amountsqualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”). The Company shall be agreed upon by the Dealer and the Issuer; shall have a maturity not exceeding 270 days from the date of issuance (exclusive of days of grace); and shall not contain any provision for extensionfile, renewal or automatic "rollover." The Notes shall be issued in the ordinary course of the Issuer's business.
1.4 The authentication, delivery and payment of the Notes shall be effected in accordance with the Issuing and Paying Agency Agreement provisions of the Securities Act of 1933, as amended, and the Notes shall be either individual bearer physical certificates or represented by book-entry Notes registered in rules and regulations thereunder (the name of DTC or its nominee in the form or forms annexed to the Issuing and Paying Agency Agreement.
1.5 If the Issuer and the Dealer shall agree on the terms of the purchase of any Note by the Dealer or the sale of any Note arranged by the Dealer (including, but not limited to, agreement with respect to the date of issue, purchase price, principal amount, maturity and interest rate (in the case of interest-bearing Notes) or discount thereof (in the case of Notes issued on a discount basis“Securities Act”), and appropriate compensation for the Dealer's services hereunder) pursuant to this Agreement, the Issuer shall cause such Note to be issued and delivered in accordance with the terms of Securities and Exchange Commission (the Issuing and Paying Agency Agreement and payment for such Note shall be made by the purchaser thereof“Commission”), either directly or through the Dealera registration statement on Form S-3, to the Issuer. Except as otherwise agreed, in the event that the Dealer is acting as an agent and a customer shall either fail to accept delivery of or make payment for a Note on the date fixed for settlement, the Dealer shall promptly notify the Issuer, and if the Dealer has theretofore paid the Issuer for the Note, the Issuer will promptly return such funds to the Dealer against its return of the Note to the Issuer, in the case of a certificated Note, and upon notice of such failure in the case of a book-entry Note. If such failure occurred for any reason other than default by the Dealer, the Issuer shall reimburse the Dealer on an equitable basis for the Dealer's loss of the use of such funds for the period such funds were credited to the Issuer's account.including
Appears in 1 contract
Samples: At Market Issuance Sales Agreement (Babcock & Wilcox Enterprises, Inc.)
Issuance and Sale of Notes. 1.1 While (i) the Issuer has and shall have no obligation to sell the Notes to the Dealer or to permit the Dealer to arrange any sale of the Notes for the account of the Issuer, and (ii) the Dealer has and shall have no obligation to purchase the Notes from the Issuer or to arrange any sale of the Notes for the account of the Issuer, the parties hereto agree that in any case where the Dealer purchases Notes from the Issuer, or arranges for the sale of Notes by the Issuer, such Notes will be purchased or sold by the Dealer in reliance on the representations, warranties, covenants and agreements of the Issuer and the Guarantor contained herein or made pursuant hereto and on the terms and conditions and in the manner provided herein.
1.2 So long as this Agreement shall remain in effect, the Issuer shall not, without the consent of the Dealer, offer, solicit or accept offers to purchase, or sell, any Notes or notes substantially similar to the Notes in reliance upon the exemption from registration under the Securities Act contained in Section 3(a)(3) thereof, except (a) Except as provided in transactions with one or more dealers which may from time to time after the date hereof become dealers with respect to the Notes by executing with the Issuer one or more agreements substantially similar to this Agreement, of which the Issuer hereby undertakes to provide the Dealer prompt notice, subsection (b) in transactions with of this Section, whenever an Authorized Representative determines that the other dealers listed on the Addendum heretoCity shall sell or issue Notes, which are executing agreements with the Issuer substantially similar to this Agreement contemporaneously herewith or (c) directly on its own behalf in transactions with persons other than broker-dealers with respect to which no commission is payable.
1.3 The Notes such Authorized Representative shall be in a minimum denomination or minimum amount, whichever is applicable, of $100,000 or integral multiples of $1,000 in excess thereof, will bear such interest rates, if interest bearing, or will be sold at such discount from their face amounts, as shall be agreed upon by the Dealer and the Issuer; shall have a maturity not exceeding 270 days from the date of issuance (exclusive of days of grace); and shall not contain any provision for extension, renewal or automatic "rollover." The Notes shall be issued in the ordinary course of the Issuer's business.
1.4 The authentication, delivery and payment of the Notes shall be effected in accordance with the Issuing and Paying Agency Agreement and the Notes shall be either individual bearer physical certificates or represented by book-entry Notes registered in the name of DTC or its nominee in the form or forms annexed deliver an Issuance Request to the Issuing and Paying Agency Agreement.
1.5 If the Issuer and the Dealer shall agree on Agent prescribing the terms of the purchase of any Note by the Dealer or such Notes and the sale or issuance thereof in accordance with Section 2.02. Each Issuance Request and each issuance of any Note arranged by Notes pursuant to this Section 3.01 shall certify or constitute a representation and warranty that:
(1) all action on the Dealer part of the City necessary for the valid issuance of the Notes then to be issued has been taken and has not been rescinded or revoked;
(including, but not limited to, agreement with respect 2) such Notes in the hands of the Owners thereof will be valid and binding obligations of the City according to their terms.
(3) no Event of Default under Section 7.01 has occurred and is continuing as of the date of issueissuance of such Notes; and
(4) the City is in compliance with the covenants set forth in Article VI hereof, purchase price, principal amount, maturity and interest rate (except in the case of interest-bearing the Taxable Notes, including without limitation, the tax covenants contained in Section 6.07 and 6.08 and the Tax Certificate, as of the date of issuance of such Notes.
(b) or discount thereof Notwithstanding the first sentence of subsection (a) of this Section, in the case event that an Authorized Representative has not delivered an Issuance Request on the maturity date of any Outstanding Note, the Issuing and Paying Agent shall authenticate and deliver an additional Note or Notes in aggregate principal amount equal to the aggregate principal amount of Notes maturing on such date and issued on a discount basis)to refund such Notes, such additional Note or Notes to be delivered to or upon the order of the Dealer against receipt of the purchase price thereof from time to time. No Issuance Request shall be required for Notes authenticated and appropriate compensation for the Dealer's services hereunder) delivered pursuant to this Agreementsubsection (b).
(c) So long as any Master Note is held by the Depository as provided in Section 2.08, the Issuer Issuing and Paying Agent shall cause such Note to be issued and delivered deliver Notes thereunder in accordance with the terms of the Letter of Representations and the Certificate Agreement.
(d) Each Issuance Request will be given by an Authorized Representative by telephone, promptly confirmed in writing (which writing may be transmitted by fax or electronic mail). The Issuing and Paying Agency Agreement Agent shall incur no liability to the City in acting hereunder upon telephonic or other instructions contemplated hereby which the recipient thereof believed in good faith to have been given by an Authorized Representative. In the event a discrepancy exists between the telephonic instructions and payment for such Note shall be made the written confirmation, or in the absence of receiving a written confirmation, the telephonic instructions as transcribed and understood by the purchaser thereof, either directly or through Issuing and Paying Agent will be deemed the Dealer, to the Issuercontrolling and proper instructions. Except as otherwise agreed, in the event that the Dealer is acting as Upon receipt of an agent and a customer shall either fail to accept delivery of or make payment for a Note on the date fixed for settlementIssuance Request, the Dealer Issuing and Paying Agent shall promptly notify authenticate and deliver the Issuer, and if the Dealer has theretofore paid the Issuer for the Note, the Issuer will promptly return such funds Notes to the Dealer against its return for the consideration and in the manner hereinafter provided, but only if the Issuing and Paying Agent shall have received such Issuance Request no later than 12:30 p.m. (New York City time) on the Business Day on which such Notes are to be delivered. If an Issuance Request is received after 12:30 p.m. (New York City time) on a given day, the Issuing and Paying Agent shall not be obligated to deliver the requested Notes until the next succeeding Business Day. In the case of book-entry Notes; the time provided above shall instead be 1:00 p.m. (New York City time). On the maturity date of an Outstanding Note or Notes as described in subsection (b) of this Section, or upon receipt of an Issuance Request as described in this subsection (d), and except as provided in subsection (c) of this Section, the Issuing and Paying Agent agrees to withdraw the Issuernecessary Note(s) from safekeeping and agrees to:
(1) complete each Note as to principal amount (in denominations as prescribed by Section 2.02(a)), date of issue, maturity date, interest rate and amount of interest thereon (or, in the case of Taxable Notes issued at a certificated Noteprice below the principal amount thereof, initial amount and value at maturity) and to register such Note as directed by Dealer, unless it has received express instructions as to registration from the Dealer;
(2) manually authenticate each Note by any officer or employee duly authorized and designated for such purpose;
(3) deliver the Note(s) to or upon the order of the Dealer or its agent within the Borough of Manhattan, south of Xxxxxxxx Street, City and State of New York, which delivery shall be against receipt for payment as herein provided or as otherwise provided in an Issuance Request (if such Issuance Request does not provide for such receipt, the Dealer shall nevertheless pay the purchase price for the Note(s) in accordance with subsection (e) hereof); and
(4) retain one (1) of the nonnegotiable copies of each Note for its records and promptly forward one (1) nonnegotiable copy of each Note to the City and the applicable Bank.
(e) The City understands that although the Issuing and Paying Agent has been instructed and has agreed to deliver the Notes against payment, in accordance with the custom prevailing in the commercial paper market, delivery of the Notes will be made before receipt of payment in immediately available funds. Therefore, once the Issuing and Paying Agent has delivered a Note to the Dealer or its agent, as provided in subsection (d)(3) of this Section, the City agrees to bear the risk that the Dealer or its agent shall fail to remit payment for the Note to the Issuing and Paying Agent. The Issuing and Paying Agent shall have no liability to the City for any failure or inability on the part of the Dealer to make payment for the Notes. It is understood that each delivery of Notes hereunder shall be subject to the rules of the New York Clearing House in effect at the time of such delivery and, in accordance therewith, Notes are to be delivered by 2:15 p.m. (New York City time).
(f) Notwithstanding any other provision of this Issuing and Paying Agent Agreement to the contrary, no such Notes shall be delivered by the Issuing and Paying Agent if the delivery of such Notes would result in violation of any of the prohibitions respecting authentication of Notes set forth in Section 2.05. If the Issuing and Paying Agent is unable to comply with an Issuance Request or the provisions of subsection (b) of this Section, the Issuing and Paying Agent shall immediately notify the City and the Dealer of the circumstances prohibiting the issuance of the Notes.
(g) Notwithstanding any other provision hereof, if a Stop Order has been delivered and has not been withdrawn pursuant to a written withdrawal of such Stop Order by the applicable Bank or Banks, the Issuing and Paying Agent shall not issue or authenticate any Notes hereunder which are affected by such Stop Order, except to effect transfers or exchanges of Outstanding Notes as provided in Section 2.06 and Section 2.07. In the event that issuance of Notes, whether pursuant to an Issuance Request or pursuant to subsection (b) of this Section, would violate a Stop Order, the Issuing and Paying Agent shall provide the City with a copy of the Stop Order, and upon notice of such failure in the case of a book-entry Note. If such failure occurred for any reason other than default by the Dealer, the Issuer shall reimburse notify the Dealer on an equitable basis for and the Dealer's loss of the use of City that it is not permitted to issue or authenticate any Notes hereunder while such funds for the period such funds were credited to the Issuer's accountStop Order remains effective.
Appears in 1 contract
Samples: Issuing and Paying Agent Agreement
Issuance and Sale of Notes. 1.1 While (i) the Issuer has and shall have no obligation to sell the Notes to the Dealer or to permit the Dealer to arrange any sale of the Notes for the account of the Issuer, and (ii) the Dealer has and shall have no obligation to purchase the Notes from the Issuer or to arrange any sale of the Notes for the account of the Issuer, the parties hereto agree that in any case where the Dealer purchases Notes from the Issuer, or arranges for the sale of Notes by the Issuer, such Notes will be purchased or sold by the Dealer in reliance on the representations, warranties, covenants and agreements of the Issuer and the Guarantor contained herein or made pursuant hereto and on the terms and conditions and in the manner provided herein.
1.2 So long as this Agreement shall remain in effect, the Issuer shall not, without the consent of the Dealer, offer, solicit or accept offers to purchase, or sell, any Notes or notes substantially similar to the Notes in reliance upon the exemption from registration under the Securities Act contained in Section 3(a)(3) thereof, except (a) in transactions with one or more dealers which may from time to time after the date hereof become dealers with respect to the Notes by executing with the Issuer one or more agreements containing substantially similar to the same terms as this Agreement, of which the Issuer hereby undertakes to provide the Dealer prompt notice, (b) in transactions with the other dealers listed on the Addendum hereto, which are executing agreements with the Issuer substantially similar to this Agreement contemporaneously herewith or (c) directly on its own behalf in transactions with persons other than broker-dealers with respect to which no commission is payable.
1.3 The Notes sold by or through the Dealer shall be in a minimum denomination or minimum amount, whichever is applicable, of $100,000 or integral multiples of $1,000 in excess thereof, will bear such interest rates, if interest bearing, or will be sold at such discount from their face amounts, as shall be agreed upon by the Dealer and the Issuer; , shall have a maturity not exceeding 270 days from the date of issuance (exclusive of days of grace); ) and shall not contain any provision for extension, renewal or automatic "“rollover." ”. The Notes shall be issued in the ordinary course of the Issuer's ’s business.
1.4 The authenticationauthentication and issuance of, delivery and payment of for, the Notes shall be effected in accordance with the Issuing and Paying Agency Agreement Agreement, and the Notes shall be either individual bearer physical certificates or represented by book-entry Notes notes evidenced by a Master Note registered in the name of DTC or its nominee nominee, in the form or forms annexed to the Issuing and Paying Agency Agreement.
1.5 If the Issuer and the Dealer shall agree on the terms of the purchase of any Note by the Dealer or the sale of any Note arranged by the Dealer (including, but not limited to, agreement with respect to the date of issue, purchase price, principal amount, maturity and interest rate (in the case of interest-bearing Notes) or discount thereof (in the case of Notes issued on a discount basis), and appropriate compensation for the Dealer's ’s services hereunder) pursuant to this Agreement, the Issuer shall cause such Note to be issued and delivered in accordance with the terms of the Issuing and Paying Agency Agreement and payment for such Note shall be made by the purchaser thereof, either directly or through the Dealer, to the Issuing and Paying Agent, for the account of the Issuer. Except as otherwise agreed, in the event that the Dealer is acting as an agent and a customer purchaser shall either fail to accept delivery of or make payment for a Note on the date fixed for settlement, the Dealer shall promptly notify the Issuer, and if the Dealer has theretofore paid the Issuer for the Note, the Issuer will promptly return such funds to the Dealer against its return of the Note to the Issuer, in the case of a certificated Note, and upon notice of such failure in the case of a book-entry Notefailure. If such failure occurred for any reason other than default by the Dealer, the Issuer shall reimburse the Dealer on an equitable basis for the Dealer's ’s loss of the use of such funds for the period such funds were credited to the Issuer's ’s account.
Appears in 1 contract
Issuance and Sale of Notes. 1.1 While The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through or to the Agent, as sales agent and/or principal, the Company’s 7.00% Fixed Rate Senior Unsecured Notes due 2025 (ithe “Notes”) to be issued under the Indenture dated as of May 12, 2014 (the “Base Indenture”), as amended and supplemented by the Fourth Supplemental Indenture dated as of May 29, 2020 (the “Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), between the Company and Deutsche Bank Trust Company Americas, as trustee (the “Trustee”), from time to time during the term of this Agreement (the “Placement Notes”); provided however, that in no event shall the Company issue or sell through the Agent such aggregate principal amount of Placement Notes that would exceed the lesser of (a) the Issuer has aggregate principal amount of Notes registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made and shall have no obligation to sell (b) the aggregate principal amount of Notes set forth on the cover page of the Prospectus Supplement (as defined below) (the lesser of (a) or (b), the “Maximum Amount”). Notwithstanding anything to the Dealer or to permit the Dealer to arrange any sale of the Notes for the account of the Issuer, and (ii) the Dealer has and shall have no obligation to purchase the Notes from the Issuer or to arrange any sale of the Notes for the account of the Issuercontrary contained herein, the parties hereto agree that compliance with the limitations set forth in any case where this Section 1 on the Dealer purchases aggregate principal amount of Placement Notes from issued and sold under this Agreement shall be the Issuer, or arranges for sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The issuance and sale of Placement Notes by through the IssuerAgent will be effected pursuant to the Registration Statement (as defined below), such although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue any Placement Notes. The Placement Notes will be purchased issued to Cede & Co., as nominee of the Depository Trust Company (“DTC”) pursuant to a blanket letter of representations (the “DTC Agreement”) to be dated on or sold prior to the date hereof between the Company and DTC. The Indenture has been qualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”). The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations thereunder (the “Securities Act”), with the United States Securities and Exchange Commission (the “Commission”), a registration statement on Form F-3 (File No. 333-230469), including a base prospectus, relating to certain securities, including the Placement Notes, to be issued from time to time by the Dealer Company, and which incorporates by reference documents that the Company has filed or will file in reliance on accordance with the representations, warranties, covenants and agreements provisions of the Issuer Securities Exchange Act of 1934, as amended and the Guarantor contained herein or made pursuant hereto rules and on regulations thereunder (the terms and conditions and in “Exchange Act”). The Company has prepared a prospectus supplement to the manner provided herein.
1.2 So long base prospectus included as this Agreement shall remain in effectpart of such registration statement specifically relating to the Placement Notes (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Issuer shall notAgent, without the consent copies of the Dealerbase prospectus included as part of such registration statement, offeras supplemented by the Prospectus Supplement, solicit or accept offers to purchase, or sell, any Notes or notes substantially similar relating to the Notes Placement Notes. Except where the context otherwise requires, such registration statement, and any post-effective amendment thereto, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in reliance upon a Prospectus (as defined below) subsequently filed with the exemption from registration Commission pursuant to Rule 424(b) under the Securities Act contained or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act, or any subsequent registration statement on Form F-3 filed pursuant to Rule 415(a)(6) under the Securities Act by the Company to cover any Placement Notes, is herein called the “Registration Statement.” The base prospectus, including all documents incorporated or deemed incorporated therein by reference to the extent such information has not been superseded or modified in Section 3(a)(3accordance with Rule 412 under the Securities Act (as qualified by Rule 430B(g) thereofof the Securities Act), except (aincluded in the Registration Statement, as it may be supplemented by the Prospectus Supplement, in the form in which such base prospectus and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) in transactions with one under the Securities Act is herein called the “Prospectus.” Any reference herein to the Registration Statement, the Prospectus or more dealers which may from time any amendment or supplement thereto shall be deemed to time after refer to and include the date hereof become dealers documents incorporated by reference therein, and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Notes by executing Registration Statement or the Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document with the Issuer one or more agreements substantially similar to Commission incorporated by reference therein (the “Incorporated Documents”). For purposes of this Agreement, of which all references to the Issuer hereby undertakes Registration Statement, the Prospectus or to provide any amendment or supplement thereto shall be deemed to include the Dealer prompt notice, (b) in transactions most recent copy filed with the other dealers listed on the Addendum heretoCommission pursuant to its Electronic Data Gathering Analysis and Retrieval System, which are executing agreements with the Issuer substantially similar to this Agreement contemporaneously herewith or (c) directly on its own behalf in transactions with persons other than broker-dealers with respect to which no commission is payable.
1.3 The Notes shall be in a minimum denomination or minimum amount, whichever is if applicable, of $100,000 or integral multiples of $1,000 in excess thereof, will bear such interest rates, if interest bearing, or will be sold at such discount from their face amounts, as shall be agreed upon the Interactive Data Electronic Application system when used by the Dealer and the Issuer; shall have a maturity not exceeding 270 days from the date of issuance Commission (exclusive of days of gracecollectively, “XXXXX”); and shall not contain any provision for extension, renewal or automatic "rollover." The Notes shall be issued in the ordinary course of the Issuer's business.
1.4 The authentication, delivery and payment of the Notes shall be effected in accordance with the Issuing and Paying Agency Agreement and the Notes shall be either individual bearer physical certificates or represented by book-entry Notes registered in the name of DTC or its nominee in the form or forms annexed to the Issuing and Paying Agency Agreement.
1.5 If the Issuer and the Dealer shall agree on the terms of the purchase of any Note by the Dealer or the sale of any Note arranged by the Dealer (including, but not limited to, agreement with respect to the date of issue, purchase price, principal amount, maturity and interest rate (in the case of interest-bearing Notes) or discount thereof (in the case of Notes issued on a discount basis), and appropriate compensation for the Dealer's services hereunder) pursuant to this Agreement, the Issuer shall cause such Note to be issued and delivered in accordance with the terms of the Issuing and Paying Agency Agreement and payment for such Note shall be made by the purchaser thereof, either directly or through the Dealer, to the Issuer. Except as otherwise agreed, in the event that the Dealer is acting as an agent and a customer shall either fail to accept delivery of or make payment for a Note on the date fixed for settlement, the Dealer shall promptly notify the Issuer, and if the Dealer has theretofore paid the Issuer for the Note, the Issuer will promptly return such funds to the Dealer against its return of the Note to the Issuer, in the case of a certificated Note, and upon notice of such failure in the case of a book-entry Note. If such failure occurred for any reason other than default by the Dealer, the Issuer shall reimburse the Dealer on an equitable basis for the Dealer's loss of the use of such funds for the period such funds were credited to the Issuer's account.
Appears in 1 contract
Issuance and Sale of Notes. 1.1 While The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through or to the Agent, as sales agent and/or principal, the Company’s 8.00% senior unsecured notes due 2024 (ithe “Notes”) be issued under an indenture dated as of November 19, 2019 (the “Base Indenture”), as supplemented by the First Supplemental Indenture dated as of November 19, 2019 (the “Supplemental Indenture” and, together with the Base Indenture, the “Indenture”), between the Company and Wilmington Savings Fund Society, FSB, as trustee (the “Trustee”), from time to time during the term of this Agreement (the “Placement Notes”); provided, however, that in no event shall the Company issue or sell through the Agent such number of Placement Notes that (a) exceeds the number or aggregate principal amount of Notes registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made, (b) exceeds the number or aggregate principal amount of Notes registered on the Prospectus Supplement (as defined below) (the lesser of (a) or (b) the Issuer has and shall have no obligation to sell the Notes “Maximum Amount”). Notwithstanding anything to the Dealer or to permit the Dealer to arrange any sale of the Notes for the account of the Issuer, and (ii) the Dealer has and shall have no obligation to purchase the Notes from the Issuer or to arrange any sale of the Notes for the account of the Issuercontrary contained herein, the parties hereto agree that compliance with the limitations set forth in any case where this Section 1 on the Dealer purchases number of Placement Notes from issued and sold under this Agreement shall be the Issuer, or arranges for sole responsibility of the Company and that the Agent shall have no obligation in connection with such compliance. The issuance and sale of Placement Notes by through or to the IssuerAgent will be effected pursuant to the Registration Statement (as defined below), such although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue any Placement Notes. The Placement Notes will be purchased issued to Cede & Co., as nominee of the Depository Trust Company (“DTC”) pursuant to a blanket letter of representations (the “DTC Agreement”) to be dated on or sold prior to the date hereof between the Company and DTC. The Indenture has been qualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”). The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations thereunder (the “Securities Act”), with the Securities and Exchange Commission (the “Commission”), a registration statement on Form F-3 (No. 333- 234343), including a related base prospectus relating to the Placement Notes to be issued from time to time by the Dealer Company, and which incorporates by reference documents that the Company has filed or will file in reliance on accordance with the representations, warranties, covenants and agreements provisions of the Issuer Securities Exchange Act of 1934, as amended, and the Guarantor contained herein or made pursuant hereto rules and on regulations thereunder (the terms “Exchange Act”). The Company has prepared and conditions and in will file a prospectus supplement to the manner provided herein.
1.2 So long prospectus included as this Agreement shall remain in effectpart of such registration statement specifically relating to the Placement Notes (the “Prospectus Supplement”). The Company will furnish to the Agent, for use by the Issuer shall notAgent, without the consent copies of the Dealer, offer, solicit or accept offers to purchase, or sell, any Notes or notes substantially similar prospectus relating to the Placement Notes included as part of such registration statement, as supplemented by the Prospectus Supplement. Except where the context otherwise requires, such registration statement, and any post-effective amendment thereto, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in reliance upon a Prospectus (as defined below) subsequently filed with the exemption from registration Commission pursuant to Rule 424(b) under the Securities Act contained or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act, is herein called the “Registration Statement.” The prospectus specifically relating to the Placement Notes, including all documents incorporated or deemed incorporated therein by reference to the extent such information has not been superseded or modified in Section 3(a)(3accordance with Rule 412 under the Securities Act (as qualified by Rule 430B(g) thereofof the Securities Act), except (aincluded in the Registration Statement, as it may be supplemented by the Prospectus Supplement, in the form in which such prospectus and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) in transactions with one under the Securities Act, is herein called the “Prospectus.” Any reference herein to the Registration Statement, the Prospectus or more dealers which may from time any amendment or supplement thereto shall be deemed to time after refer to and include the date hereof become dealers documents incorporated by reference therein, and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Notes by executing Registration Statement or the Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document with the Issuer one or more agreements substantially similar to Commission incorporated by reference therein (the “Incorporated Documents”). For purposes of this Agreement, of which all references to the Issuer hereby undertakes Registration Statement, the Prospectus or to provide any amendment or supplement thereto shall be deemed to include the Dealer prompt notice, (b) in transactions most recent copy filed with the other dealers listed on the Addendum heretoCommission pursuant to its Electronic Data Gathering Analysis and Retrieval System, which are executing agreements with the Issuer substantially similar to this Agreement contemporaneously herewith or (c) directly on its own behalf in transactions with persons other than broker-dealers with respect to which no commission is payable.
1.3 The Notes shall be in a minimum denomination or minimum amount, whichever is if applicable, of $100,000 or integral multiples of $1,000 in excess thereof, will bear such interest rates, if interest bearing, or will be sold at such discount from their face amounts, as shall be agreed upon the Interactive Data Electronic Application system when used by the Dealer and the Issuer; shall have a maturity not exceeding 270 days from the date of issuance Commission (exclusive of days of gracecollectively, “XXXXX”); and shall not contain any provision for extension, renewal or automatic "rollover." The Notes shall be issued in the ordinary course of the Issuer's business.
1.4 The authentication, delivery and payment of the Notes shall be effected in accordance with the Issuing and Paying Agency Agreement and the Notes shall be either individual bearer physical certificates or represented by book-entry Notes registered in the name of DTC or its nominee in the form or forms annexed to the Issuing and Paying Agency Agreement.
1.5 If the Issuer and the Dealer shall agree on the terms of the purchase of any Note by the Dealer or the sale of any Note arranged by the Dealer (including, but not limited to, agreement with respect to the date of issue, purchase price, principal amount, maturity and interest rate (in the case of interest-bearing Notes) or discount thereof (in the case of Notes issued on a discount basis), and appropriate compensation for the Dealer's services hereunder) pursuant to this Agreement, the Issuer shall cause such Note to be issued and delivered in accordance with the terms of the Issuing and Paying Agency Agreement and payment for such Note shall be made by the purchaser thereof, either directly or through the Dealer, to the Issuer. Except as otherwise agreed, in the event that the Dealer is acting as an agent and a customer shall either fail to accept delivery of or make payment for a Note on the date fixed for settlement, the Dealer shall promptly notify the Issuer, and if the Dealer has theretofore paid the Issuer for the Note, the Issuer will promptly return such funds to the Dealer against its return of the Note to the Issuer, in the case of a certificated Note, and upon notice of such failure in the case of a book-entry Note. If such failure occurred for any reason other than default by the Dealer, the Issuer shall reimburse the Dealer on an equitable basis for the Dealer's loss of the use of such funds for the period such funds were credited to the Issuer's account.
Appears in 1 contract
Samples: At Market Issuance Sales Agreement (Global Ship Lease, Inc.)
Issuance and Sale of Notes. 1.1 While The Company agrees that, on the terms and subject to the conditions set forth herein, it may issue and sell through MLV, the Company’s 6.625% Senior Notes due 2023 (ithe “Notes”), to be issued under an indenture dated as of May 1, 2013 (the “Base Indenture”), among the Company and Xxxxx Fargo Bank, National Association, as trustee (the “Trustee”), as supplemented by the First Supplemental Indenture thereto dated as of May 1, 2013 (the “Supplemental Indenture”, together with the Base Indenture, the “Indenture”), from time to time during the term of this Agreement (the “Placement Notes”), provided however; that in no event shall the Company issue or sell through MLV, the Alternative Agent (defined below) or any additional sales agents appointed by the Company after the date hereof (each, an “Additional Agent” and collectively, the “Additional Agents”) such number of Placement Notes that exceeds the lesser of (a) the Issuer has number of Notes registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made, or (b) the aggregate principal amount of Notes authorized to be issued by the board of directors of the Company (the “Board”) from time to time (the lesser of (a) and shall have no obligation to sell (b), the Notes “Maximum Amount”). Notwithstanding anything to the Dealer or to permit the Dealer to arrange any sale of the Notes for the account of the Issuer, and (ii) the Dealer has and shall have no obligation to purchase the Notes from the Issuer or to arrange any sale of the Notes for the account of the Issuercontrary contained herein, the parties hereto agree that compliance with the limitations set forth in any case where the Dealer purchases Notes from the Issuer, or arranges for the sale of Notes by the Issuer, such Notes will be purchased or sold by the Dealer in reliance this Section 1 on the representations, warranties, covenants number of Placement Notes issued and agreements of the Issuer and the Guarantor contained herein or made pursuant hereto and on the terms and conditions and in the manner provided herein.
1.2 So long as sold under this Agreement shall remain in effect, be the Issuer shall not, without the consent sole responsibility of the Dealer, offer, solicit or accept offers to purchase, or sell, any Company and that MLV shall have no obligation in connection with such compliance. The issuance and sale of Placement Notes or notes substantially similar through MLV will be effected pursuant to the Notes Registration Statement (as defined below), although nothing in reliance upon this Agreement shall be construed as requiring the exemption from registration under Company to use the Securities Act contained in Section 3(a)(3) thereofRegistration Statement to issue any Placement Notes. The Company has also entered into a separate At-the Market Issuance Sales Agreement, except dated as of even date herewith (a) in transactions with one or more dealers the “Alternative Sales Agreement”), pursuant to which may it may, from time to time after during the date hereof become dealers with respect to the Notes by executing with the Issuer one or more agreements substantially similar to this term of such Alternative Sales Agreement, issue and sell through or to JMP Securities LLC (the “Alternative Agent”), as sales agent and/or principal, the Notes. The aggregate amount of which the Issuer hereby undertakes to provide the Dealer prompt notice, (b) in transactions with the other dealers listed on the Addendum hereto, which are executing agreements with the Issuer substantially similar to this Agreement contemporaneously herewith or (c) directly on its own behalf in transactions with persons other than broker-dealers with respect to which no commission is payable.
1.3 The Notes shall be in a minimum denomination or minimum amount, whichever is applicable, of $100,000 or integral multiples of $1,000 in excess thereof, will bear such interest rates, if interest bearing, or will that may be sold at such discount from their face amounts, as shall be agreed upon by the Dealer and the Issuer; shall have a maturity not exceeding 270 days from the date of issuance (exclusive of days of grace); and shall not contain any provision for extension, renewal or automatic "rollover." The Notes shall be issued in the ordinary course of the Issuer's business.
1.4 The authentication, delivery and payment of the Notes shall be effected in accordance with the Issuing and Paying Agency Agreement and the Notes shall be either individual bearer physical certificates or represented by book-entry Notes registered in the name of DTC or its nominee in the form or forms annexed to the Issuing and Paying Agency Agreement.
1.5 If the Issuer and the Dealer shall agree on the terms of the purchase of any Note by the Dealer or the sale of any Note arranged by the Dealer (including, but not limited to, agreement with respect to the date of issue, purchase price, principal amount, maturity and interest rate (in the case of interest-bearing Notes) or discount thereof (in the case of Notes issued on a discount basis), and appropriate compensation for the Dealer's services hereunder) pursuant to this Agreement, the Issuer Alternative Sales Agreement and any agreement entered into with any Additional Agents shall cause such Note to be issued and delivered not exceed the Maximum Amount. The Company has filed, in accordance with the terms provisions of the Issuing Securities Act of 1933, as amended, and Paying Agency Agreement the rules and payment for such Note shall regulations thereunder (the “Securities Act”), with the Securities and Exchange Commission (the “Commission”), a registration statement on Form S-3 (File No. 333-171537), including a base prospectus, relating to certain securities, including the Placement Notes to be made issued from time to time by the purchaser thereofCompany, either directly and which incorporates by reference documents that the Company has filed or through will file in accordance with the Dealerprovisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (the “Exchange Act”). The Company has prepared a prospectus supplement to the Issuerbase prospectus included as part of such registration statement specifically relating to the Placement Notes (the “Prospectus Supplement”). The Company will furnish to MLV, for use by MLV, copies of the base prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement, relating to the Placement Notes. Except where the context otherwise requires, such registration statement, including all documents filed as otherwise agreedpart thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act, is herein called the “Registration Statement.” The base prospectus, including all documents incorporated or deemed incorporated therein by reference to the extent such information has not been superseded or modified in accordance with Rule 412 under the Securities Act (as qualified by Rule 430B(g) of the Securities Act), included in the Registration Statement, as it may be supplemented by the Prospectus Supplement, in the event that form in which such base prospectus and/or Prospectus Supplement have most recently been filed by the Dealer Company with the Commission pursuant to Rule 424(b) under the Securities Act, is acting as an agent and a customer shall either fail herein called the “Prospectus.” Any reference herein to accept delivery of or make payment for a Note on the date fixed for settlementRegistration Statement, the Dealer Prospectus or any amendment or supplement thereto shall promptly notify be deemed to refer to and include the Issuerdocuments incorporated or deemed incorporated by reference therein, and if any reference herein to the Dealer has theretofore paid terms “amend,” “amendment” or “supplement” with respect to the Issuer for Registration Statement or the NoteProspectus shall be deemed to refer to and include the filing after the execution hereof of any document with the Commission deemed to be incorporated by reference therein (the “Incorporated Documents”). For purposes of this Agreement, all references to the Registration Statement, the Issuer will promptly return such funds Prospectus or to any amendment or supplement thereto shall be deemed to include the Dealer against most recent copy filed with the Commission pursuant to its return of Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Note to the Issuer, in the case of a certificated Note, and upon notice of such failure in the case of a book-entry Note. If such failure occurred for any reason other than default Interactive Data Electronic Application system when used by the DealerCommission (collectively, the Issuer shall reimburse the Dealer on an equitable basis for the Dealer's loss of the use of such funds for the period such funds were credited to the Issuer's account“XXXXX”).
Appears in 1 contract
Samples: At the Market Issuance Sales Agreement (Arlington Asset Investment Corp.)
Issuance and Sale of Notes. 1.1 While The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through BRFBR the Company’s 7.25% Senior Notes Due 2027 (ithe “December 2027 Notes”), 7.50% Senior Notes due 2027 (the “May 2027 Notes”), the Company’s 7.50% Senior Notes due 2021 (the “2021 Notes”), and the Company 7.375% Senior Notes due 2023 (the “2023 Notes”, together with the December 2027, the May 2027 Notes and the 2021 Notes, the “Notes”) be issued under an indenture dated as of November 2, 2016 (the “Base Indenture”), as supplemented by the First Supplemental Indenture dated as of November 2, 2016 (the “First Supplemental Indenture”), the Second Supplemental Indenture dated as of May 31, 2017, 2017 (the “Second Supplemental Indenture”), the Third Supplemental Indenture dated as of December 13, 2017, and the Fourth Supplemental Indenture dated as of May 17, 2018 (together with the Base Indenture, First Supplemental Indenture, Second Supplemental Indenture, and Third Supplemental Indenture, the “Indenture”), between the Company and U.S. Bank National Association, as trustee (the “Trustee”), from time to time during the term of this Agreement (the “Placement Notes”); provided, however, that in no event shall the Company issue or sell through BRFBR such number of Placement Notes that (a) exceeds the number or dollar amount of Notes registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made or (b) the Issuer has and shall have no obligation aggregate principal amount of Notes authorized to sell be issued by the Notes board of directors of the Company (the “Board”) from time to time (the lesser of (a) or (b) the “Maximum Amount”). Notwithstanding anything to the Dealer or to permit the Dealer to arrange any sale of the Notes for the account of the Issuer, and (ii) the Dealer has and shall have no obligation to purchase the Notes from the Issuer or to arrange any sale of the Notes for the account of the Issuercontrary contained herein, the parties hereto agree that compliance with the limitations set forth in any case where this Section 1 on the Dealer purchases number of Placement Notes from issued and sold under this Agreement shall be the Issuer, or arranges for sole responsibility of the Company and that BRFBR shall have no obligation in connection with such compliance. The issuance and sale of Placement Notes by through BRFBR will be effected pursuant to the IssuerRegistration Statement (as defined below), such although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue any Placement Notes. The Placement Notes will be purchased issued to Cede & Co., as nominee of the Depository Trust Company (“DTC”) pursuant to a blanket letter of representations (the “DTC Agreement”) to be dated on or sold prior to the date hereof between the Company and DTC. The Indenture will be qualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”). The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations thereunder (the “Securities Act”), with the Securities and Exchange Commission (the “Commission”), a registration statement on Form S-3, including a prospectus, relating to the Placement Notes to be issued from time to time by the Dealer Company, and which incorporates by reference documents that the Company has filed or will file in reliance on accordance with the representations, warranties, covenants and agreements provisions of the Issuer Securities Exchange Act of 1934, as amended, and the Guarantor contained herein or made pursuant hereto rules and on regulations thereunder (the terms and conditions and in “Exchange Act”). The Company will, if necessary, prepare a prospectus supplement to the manner provided herein.
1.2 So long prospectus included as this Agreement shall remain in effectpart of such registration statement specifically relating to the Placement Notes (the “Prospectus Supplement”). The Company will furnish to BRFBR, the Issuer shall notfor use by BRFBR, without the consent copies of the Dealer, offer, solicit or accept offers to purchase, or sell, any Notes or notes substantially similar prospectus relating to the Placement Notes included as part of such registration statement, as supplemented by the Prospectus Supplement. Except where the context otherwise requires, such registration statement, and any post-effective amendment thereto, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in reliance upon a Prospectus (as defined below) subsequently filed with the exemption from registration Commission pursuant to Rule 424(b) under the Securities Act contained or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act, is herein called the “Registration Statement.” The prospectus specifically relating to the Placement Notes, including all documents incorporated or deemed incorporated therein by reference to the extent such information has not been superseded or modified in Section 3(a)(3accordance with Rule 412 under the Securities Act (as qualified by Rule 430B(g) thereofof the Securities Act), except (aincluded in the Registration Statement, as it may be supplemented by the Prospectus Supplement, in the form in which such prospectus and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) in transactions with one under the Securities Act, is herein called the “Prospectus.” Any reference herein to the Registration Statement, the Prospectus or more dealers which may from time any amendment or supplement thereto shall be deemed to time after refer to and include the date hereof become dealers documents incorporated by reference therein, and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Notes by executing Registration Statement or the Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document with the Issuer one or more agreements substantially similar to Commission incorporated by reference therein (the “Incorporated Documents”). For purposes of this Agreement, of which all references to the Issuer hereby undertakes Registration Statement, the Prospectus or to provide any amendment or supplement thereto shall be deemed to include the Dealer prompt notice, (b) in transactions most recent copy filed with the other dealers listed on the Addendum heretoCommission pursuant to its Electronic Data Gathering Analysis and Retrieval System, which are executing agreements with the Issuer substantially similar to this Agreement contemporaneously herewith or (c) directly on its own behalf in transactions with persons other than broker-dealers with respect to which no commission is payable.
1.3 The Notes shall be in a minimum denomination or minimum amount, whichever is if applicable, of $100,000 or integral multiples of $1,000 in excess thereof, will bear such interest rates, if interest bearing, or will be sold at such discount from their face amounts, as shall be agreed upon the Interactive Data Electronic Application system when used by the Dealer and the Issuer; shall have a maturity not exceeding 270 days from the date of issuance Commission (exclusive of days of gracecollectively, “XXXXX”); and shall not contain any provision for extension, renewal or automatic "rollover." . The Notes shall be issued in the ordinary course of the Issuer's business.
1.4 The authentication, delivery and payment of the Notes shall be effected in accordance with the Issuing and Paying Agency Company has entered into that Agreement and Plan of Merger dated as of November 9, 2017 (the Notes shall be either individual bearer physical certificates or represented by book-entry Notes registered in the name of DTC or its nominee in the form or forms annexed to the Issuing and Paying Agency “magicJack Merger Agreement.
1.5 If the Issuer and the Dealer shall agree on the terms of the purchase of any Note by the Dealer or the sale of any Note arranged by the Dealer ”) with magicJack VocalTec Ltd., an Israeli corporation (including, but not limited to, agreement with respect to the date of issue, purchase price, principal amount, maturity and interest rate (in the case of interest-bearing Notes) or discount thereof (in the case of Notes issued on a discount basis), and appropriate compensation for the Dealer's services hereunder“magicJack”) pursuant to this Agreementwhich magicJack shall, subject to the Issuer shall cause such Note to be issued and delivered in accordance with the terms conditions set forth therein, become a wholly-owned subsidiary of the Issuing and Paying Agency Agreement and payment for such Note shall be made by Company (the purchaser thereof, either directly or through the Dealer, to the Issuer. Except as otherwise agreed, in the event that the Dealer is acting as an agent and a customer shall either fail to accept delivery of or make payment for a Note on the date fixed for settlement, the Dealer shall promptly notify the Issuer, and if the Dealer has theretofore paid the Issuer for the Note, the Issuer will promptly return such funds to the Dealer against its return of the Note to the Issuer, in the case of a certificated Note, and upon notice of such failure in the case of a book-entry Note. If such failure occurred for any reason other than default by the Dealer, the Issuer shall reimburse the Dealer on an equitable basis for the Dealer's loss of the use of such funds for the period such funds were credited to the Issuer's account“Acquisition”).
Appears in 1 contract
Samples: At Market Issuance Sales Agreement (B. Riley Financial, Inc.)
Issuance and Sale of Notes. 1.1 While The Company agrees that, on the terms and subject to the conditions set forth herein, it may issue and sell through JMP, the Company’s 6.625% Senior Notes due 2023 (ithe “Notes”), to be issued under an indenture dated as of May 1, 2013 (the “Base Indenture”), among the Company and Xxxxx Fargo Bank, National Association, as trustee (the “Trustee”), as supplemented by the First Supplemental Indenture thereto dated as of May 1, 2013 (the “Supplemental Indenture”, together with the Base Indenture, the “Indenture”), from time to time during the term of this Agreement (the “Placement Notes”), provided however; that in no event shall the Company issue or sell through JMP, the Alternative Agent (defined below) or any additional sales agents appointed by the Company after the date hereof (each, an “Additional Agent” and collectively, the “Additional Agents”) such number of Placement Notes that exceeds the lesser of (a) the Issuer has number of Notes registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made, or (b) the aggregate principal amount of Notes authorized to be issued by the board of directors of the Company (the “Board”) from time to time (the lesser of (a) and shall have no obligation to sell (b), the Notes “Maximum Amount”). Notwithstanding anything to the Dealer or to permit the Dealer to arrange any sale of the Notes for the account of the Issuer, and (ii) the Dealer has and shall have no obligation to purchase the Notes from the Issuer or to arrange any sale of the Notes for the account of the Issuercontrary contained herein, the parties hereto agree that compliance with the limitations set forth in any case where the Dealer purchases Notes from the Issuer, or arranges for the sale of Notes by the Issuer, such Notes will be purchased or sold by the Dealer in reliance this Section 1 on the representations, warranties, covenants number of Placement Notes issued and agreements of the Issuer and the Guarantor contained herein or made pursuant hereto and on the terms and conditions and in the manner provided herein.
1.2 So long as sold under this Agreement shall remain in effect, be the Issuer shall not, without the consent sole responsibility of the Dealer, offer, solicit or accept offers to purchase, or sell, any Company and that JMP shall have no obligation in connection with such compliance. The issuance and sale of Placement Notes or notes substantially similar through JMP will be effected pursuant to the Notes Registration Statement (as defined below), although nothing in reliance upon this Agreement shall be construed as requiring the exemption from registration under Company to use the Securities Act contained in Section 3(a)(3) thereofRegistration Statement to issue any Placement Notes. The Company has also entered into a separate At-the Market Issuance Sales Agreement, except dated as of even date herewith (a) in transactions with one or more dealers the “Alternative Sales Agreement”), pursuant to which may it may, from time to time after during the date hereof become dealers with respect to the Notes by executing with the Issuer one or more agreements substantially similar to this term of such Alternative Sales Agreement, issue and sell through or to MLV & Co. LLC (the “Alternative Agent”), as sales agent and/or principal, the Notes. The aggregate amount of which the Issuer hereby undertakes to provide the Dealer prompt notice, (b) in transactions with the other dealers listed on the Addendum hereto, which are executing agreements with the Issuer substantially similar to this Agreement contemporaneously herewith or (c) directly on its own behalf in transactions with persons other than broker-dealers with respect to which no commission is payable.
1.3 The Notes shall be in a minimum denomination or minimum amount, whichever is applicable, of $100,000 or integral multiples of $1,000 in excess thereof, will bear such interest rates, if interest bearing, or will that may be sold at such discount from their face amounts, as shall be agreed upon by the Dealer and the Issuer; shall have a maturity not exceeding 270 days from the date of issuance (exclusive of days of grace); and shall not contain any provision for extension, renewal or automatic "rollover." The Notes shall be issued in the ordinary course of the Issuer's business.
1.4 The authentication, delivery and payment of the Notes shall be effected in accordance with the Issuing and Paying Agency Agreement and the Notes shall be either individual bearer physical certificates or represented by book-entry Notes registered in the name of DTC or its nominee in the form or forms annexed to the Issuing and Paying Agency Agreement.
1.5 If the Issuer and the Dealer shall agree on the terms of the purchase of any Note by the Dealer or the sale of any Note arranged by the Dealer (including, but not limited to, agreement with respect to the date of issue, purchase price, principal amount, maturity and interest rate (in the case of interest-bearing Notes) or discount thereof (in the case of Notes issued on a discount basis), and appropriate compensation for the Dealer's services hereunder) pursuant to this Agreement, the Issuer Alternative Sales Agreement and any agreement entered into with any Additional Agents shall cause such Note to be issued and delivered not exceed the Maximum Amount. The Company has filed, in accordance with the terms provisions of the Issuing Securities Act of 1933, as amended, and Paying Agency Agreement the rules and payment for such Note shall regulations thereunder (the “Securities Act”), with the Securities and Exchange Commission (the “Commission”), a registration statement on Form S-3 (File No. 333-171537), including a base prospectus, relating to certain securities, including the Placement Notes to be made issued from time to time by the purchaser thereofCompany, either directly and which incorporates by reference documents that the Company has filed or through will file in accordance with the Dealerprovisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (the “Exchange Act”). The Company has prepared a prospectus supplement to the Issuerbase prospectus included as part of such registration statement specifically relating to the Placement Notes (the “Prospectus Supplement”). The Company will furnish to JMP, for use by JMP, copies of the base prospectus included as part of such registration statement, as supplemented by the Prospectus Supplement, relating to the Placement Notes. Except where the context otherwise requires, such registration statement, including all documents filed as otherwise agreedpart thereof or incorporated by reference therein, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 424(b) under the Securities Act or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act, is herein called the “Registration Statement.” The base prospectus, including all documents incorporated or deemed incorporated therein by reference to the extent such information has not been superseded or modified in accordance with Rule 412 under the Securities Act (as qualified by Rule 430B(g) of the Securities Act), included in the Registration Statement, as it may be supplemented by the Prospectus Supplement, in the event that form in which such base prospectus and/or Prospectus Supplement have most recently been filed by the Dealer Company with the Commission pursuant to Rule 424(b) under the Securities Act, is acting as an agent and a customer shall either fail herein called the “Prospectus.” Any reference herein to accept delivery of or make payment for a Note on the date fixed for settlementRegistration Statement, the Dealer Prospectus or any amendment or supplement thereto shall promptly notify be deemed to refer to and include the Issuerdocuments incorporated or deemed incorporated by reference therein, and if any reference herein to the Dealer has theretofore paid terms “amend,” “amendment” or “supplement” with respect to the Issuer for Registration Statement or the NoteProspectus shall be deemed to refer to and include the filing after the execution hereof of any document with the Commission deemed to be incorporated by reference therein (the “Incorporated Documents”). For purposes of this Agreement, all references to the Registration Statement, the Issuer will promptly return such funds Prospectus or to any amendment or supplement thereto shall be deemed to include the Dealer against most recent copy filed with the Commission pursuant to its return of Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Note to the Issuer, in the case of a certificated Note, and upon notice of such failure in the case of a book-entry Note. If such failure occurred for any reason other than default Interactive Data Electronic Application system when used by the DealerCommission (collectively, the Issuer shall reimburse the Dealer on an equitable basis for the Dealer's loss of the use of such funds for the period such funds were credited to the Issuer's account“XXXXX”).
Appears in 1 contract
Samples: At the Market Issuance Sales Agreement (Arlington Asset Investment Corp.)
Issuance and Sale of Notes. 1.1 While In December 2015, the Company issued $160,000,000 in aggregate principal amount of its 6.25% Notes due 2024, which trade on the New York Stock Exchange (ithe “NYSE”) under the Issuer has trading symbol “PBB” (the “2024 Notes”). The Company proposes to issue and shall have no obligation sell through the Agent, as sales agent, in accordance with the terms and conditions set forth in Section 4 of this Agreement, additional 2024 Notes (the “Notes”) having an aggregate principal amount of up to sell [$150,000,000] (the Notes “Maximum Amount”). Notwithstanding anything to the Dealer or to permit the Dealer to arrange any sale of the Notes for the account of the Issuer, and (ii) the Dealer has and shall have no obligation to purchase the Notes from the Issuer or to arrange any sale of the Notes for the account of the Issuercontrary contained herein, the parties hereto agree that compliance with the limitations set forth in any case where this Section 1 regarding the Dealer purchases Maximum Amount of the Notes from to be issued and sold under this Agreement shall be the Issuersole responsibility of the Company, or arranges for and the Agent shall have no obligation in connection with such compliance. The Notes will be issued pursuant to an indenture, dated as of February 16, 2012, as amended (the “Base Indenture”), between the Company and U.S. Bank National Association, as trustee (the “Trustee”), as supplemented by a supplemental indenture, dated as of December 10, 2015, between the Company and the Trustee (the “Original Supplemental Indenture”) as further supplemented by a supplemental indenture, dated the date hereof, between the Company and the Trustee (the “New Supplemental Indenture” and together with the Base Indenture and the Original Supplemental Indenture, the “Indenture”). The issuance and sale of Notes through the Agent will be effected pursuant to the Registration Statement (as defined below) filed by the Issuer, such Notes will be purchased or sold Company and declared effective by the Dealer in reliance on Securities and Exchange Commission (the representations“Commission”). The Company, warranties, covenants and agreements of the Issuer Adviser and the Guarantor contained herein or made pursuant hereto and on the terms and conditions and Administrator have also entered into (i) a debt distribution agreement in the manner provided herein.
1.2 So long as this Agreement shall remain in effect, the Issuer shall not, without the consent of the Dealer, offer, solicit or accept offers to purchase, or sell, any Notes or notes substantially similar to the Notes in reliance upon the exemption from registration under the Securities Act contained in Section 3(a)(3) thereof, except (a) in transactions with one or more dealers which may from time to time after the date hereof become dealers with respect to the Notes by executing with the Issuer one or more agreements substantially similar to this Agreement, of which the Issuer hereby undertakes to provide the Dealer prompt notice, (b) in transactions with the other dealers listed on the Addendum hereto, which are executing agreements with the Issuer substantially similar form to this Agreement contemporaneously herewith or (cthe “[AGENT 2] Agreement”) directly on its own behalf dated of even date herewith, with [AGENT 2] (“[AGENT 2]”) and (ii) a debt distribution agreement in transactions substantially similar form to this Agreement (the “[AGENT 3] Agreement”) dated of even date herewith, with persons other than broker-dealers with respect to which no commission is payable.
1.3 [AGENT 3] (“[AGENT 3]”). The aggregate principal amount of Notes shall be in a minimum denomination or minimum amount, whichever is applicable, of $100,000 or integral multiples of $1,000 in excess thereof, will bear such interest rates, if interest bearing, or will that may be sold at such discount from their face amounts, as shall be agreed upon by the Dealer and the Issuer; shall have a maturity not exceeding 270 days from the date of issuance (exclusive of days of grace); and shall not contain any provision for extension, renewal or automatic "rollover." The Notes shall be issued in the ordinary course of the Issuer's business.
1.4 The authentication, delivery and payment of the Notes shall be effected in accordance with the Issuing and Paying Agency Agreement and the Notes shall be either individual bearer physical certificates or represented by book-entry Notes registered in the name of DTC or its nominee in the form or forms annexed to the Issuing and Paying Agency Agreement.
1.5 If the Issuer and the Dealer shall agree on the terms of the purchase of any Note by the Dealer or the sale of any Note arranged by the Dealer (including, but not limited to, agreement with respect to the date of issue, purchase price, principal amount, maturity and interest rate (in the case of interest-bearing Notes) or discount thereof (in the case of Notes issued on a discount basis), and appropriate compensation for the Dealer's services hereunder) collectively pursuant to this Agreement, the Issuer [AGENT 2] Agreement and the [AGENT 3] Agreement shall cause such Note not exceed the Maximum Amount. The Company has entered into an investment advisory and management agreement, dated as of July 24, 2004, as renewed on May 5, 2015 by the Board (the “Investment Advisory Agreement”), with the Adviser under the Advisers Act. The Company has entered into an administration agreement, dated as of July 24, 2004, as renewed on May 5, 2015 by the Board (the “Administration Agreement”), with the Administrator. The Company has filed, pursuant to the 1933 Act, with the Commission a registration statement on Form N-2 (File No. 333-206661), which registers the offer and sale of certain securities to be issued from time to time by the Company, including the Notes. The Indenture has been qualified under the Trust Indenture Act of 1939, as amended, and delivered the rules and regulations promulgated thereunder (the “Trust Indenture Act”). The Company filed a Form N-54A “Notification of Election to be Subject to Sections 55 through 65 of the 1940 Act Filed Pursuant to Section 54(a) of the 1940 Act” (File No. 814-00659) with the Commission on April 16, 2004, under the 1940 Act. Except where the context otherwise requires, the registration statement, as amended when it became effective and any post-effective amendment thereto, including in each case all documents filed as a part thereof, and including any information contained in a Prospectus (as defined below) subsequently filed with the Commission pursuant to Rule 497 under the 1933 Act or deemed to be part of such registration statement pursuant to Rule 430C under the 1933 Act is hereinafter referred to as the “Registration Statement.” The prospectus, in the form it was included in the Registration Statement at the time it was declared effective is hereinafter referred to as the “Base Prospectus.” The Company has prepared and will file with the Commission in accordance with Rule 497 under the terms 1933 Act, a prospectus supplement (the “Prospectus Supplement”) supplementing the Base Prospectus in connection with offers and sales of the Issuing Notes. The Base Prospectus and Paying Agency the most recent Prospectus Supplement filed with the Commission pursuant to Rule 497 under the 1933 Act at each Applicable Time and each Settlement Date are hereinafter referred to collectively as the “Prospectus.” All references in this Agreement to financial statements and payment for such Note schedules and other information which is “contained,” “disclosed,” “included,” “filed as part of” or “stated” in the Registration Statement or the Prospectus (and all other references of like import) shall be made deemed to mean and include all such financial statements and schedules and other information which are or are deemed to be incorporated by reference in the purchaser thereofRegistration Statement or the Prospectus, either directly as the case may be; and all references in this Agreement to amendments or through the Dealer, supplements to the Issuer. Except as otherwise agreed, Registration Statement or the Prospectus shall be deemed to mean and include the filing of any document under the Exchange Act which is or is deemed to be incorporated by reference in the event that Registration Statement or the Dealer is acting Prospectus, as an agent and a customer shall either fail the case may be. All references in this Agreement to accept delivery of or make payment for a Note on the date fixed for settlementRegistration Statement, the Dealer shall promptly notify the Issuer, and if the Dealer has theretofore paid the Issuer for the Note, the Issuer will promptly return such funds Prospectus or any amendments or supplements to the Dealer against its return any of the Note foregoing, shall include any copy thereof filed with the Commission pursuant to the Issuerits Electronic Data Gathering, in the case of a certificated Note, Analysis and upon notice of such failure in the case of a book-entry Note. If such failure occurred for any reason other than default by the Dealer, the Issuer shall reimburse the Dealer on an equitable basis for the Dealer's loss of the use of such funds for the period such funds were credited to the Issuer's accountRetrieval System (“XXXXX”).
Appears in 1 contract
Samples: Debt Distribution Agreement (Prospect Capital Corp)
Issuance and Sale of Notes. 1.1 While (i) The Company agrees that, on the Issuer has terms and shall have no obligation to sell the Notes subject to the Dealer or conditions set forth herein, it may issue and sell through the Agents up to permit an aggregate principal amount of $25,000,000 (the Dealer to arrange any sale “Maximum Amount”) of the Company’s 6.50% Senior Notes for due 2027 (the account “Notes”), from time to time during the term of this Agreement (the Issuer, and (ii) “Placement Notes”). Notwithstanding anything to the Dealer has and shall have no obligation to purchase the Notes from the Issuer or to arrange any sale of the Notes for the account of the Issuercontrary contained herein, the parties hereto agree that compliance with the limitations set forth in any case where this Section 1 on the Dealer purchases aggregate principal amount of Placement Notes from issued and sold under this Agreement shall be the Issuer, or arranges for sole responsibility of the Company and that the Agents shall have no obligation in connection with such compliance. The issuance and sale of Placement Notes by through the IssuerAgents will be effected pursuant to the Registration Statement (as defined below), such although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue any Placement Notes. The Placement Notes will be purchased or sold issued under an indenture dated as of November 21, 2017 (the “Base Indenture”), as supplemented by the Dealer in reliance on First Supplemental Indenture dated as of November 21, 2017 (the representations“First Supplemental Indenture” and, warrantiestogether with the Base Indenture, covenants the “Indenture”), between the Company and agreements U.S. Bank National Association, as trustee (the “Trustee”). The Securities will be issued to Cede & Co., as nominee of the Issuer Depository Trust Company (“DTC”) pursuant to a blanket letter of representations delivered to DTC prior to the date hereof (the “DTC Letter”). The Indenture has been qualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”). The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended (the “Securities Act”), and the Guarantor contained herein rules and regulations thereunder (the “Securities Act Rules and Regulations”), with the Securities and Exchange Commission (the “Commission”), a registration statement on Form S-3, including a prospectus, relating to the Placement Notes to be issued from time to time by the Company, and which incorporates by reference documents that the Company has filed or made pursuant hereto and on will file in accordance with the terms and conditions and in the manner provided herein.
1.2 So long as this Agreement shall remain in effect, the Issuer shall not, without the consent provisions of the DealerSecurities Exchange Act of 1934, offeras amended (the “Exchange Act”), solicit or accept offers to purchaseand the rules and regulations thereunder (the “Exchange Act Rules and Regulations”). The Company will, or sellif necessary, any Notes or notes substantially similar prepare a prospectus supplement to the prospectus included as part of such registration statement specifically relating to the Placement Notes (the “Prospectus Supplement”). The Company will furnish to Ladenburg, for use by the Agents, copies of the prospectus relating to the Placement Notes included as part of such registration statement, as supplemented by the Prospectus Supplement. Except where the context otherwise requires, such registration statement, and any post-effective amendment thereto, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in reliance upon a Prospectus (as defined below) subsequently filed with the exemption from registration Commission pursuant to Rule 424(b) under the Securities Act contained or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act, is herein called the “Registration Statement.” The prospectus specifically relating to the Placement Notes, including all documents incorporated or deemed incorporated therein by reference to the extent such information has not been superseded or modified in Section 3(a)(3accordance with Rule 412 under the Securities Act (as qualified by Rule 430B(g) thereofof the Securities Act), except (aincluded in the Registration Statement, as it may be supplemented by the Prospectus Supplement, in the form in which such prospectus and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) in transactions with one under the Securities Act, is herein called the “Prospectus.” Any reference herein to the Registration Statement, the Prospectus or more dealers which may from time any amendment or supplement thereto shall be deemed to time after refer to and include the date hereof become dealers documents incorporated by reference therein, and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Notes by executing Registration Statement or the Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document with the Issuer one or more agreements substantially similar to Commission incorporated by reference therein (the “Incorporated Documents”). For purposes of this Agreement, of which all references to the Issuer hereby undertakes Registration Statement, the Prospectus or to provide any amendment or supplement thereto shall be deemed to include the Dealer prompt notice, (b) in transactions most recent copy filed with the other dealers listed on the Addendum heretoCommission pursuant to its Electronic Data Gathering Analysis and Retrieval System, which are executing agreements with the Issuer substantially similar to this Agreement contemporaneously herewith or (c) directly on its own behalf in transactions with persons other than broker-dealers with respect to which no commission is payable.
1.3 The Notes shall be in a minimum denomination or minimum amount, whichever is if applicable, of $100,000 or integral multiples of $1,000 in excess thereof, will bear such interest rates, if interest bearing, or will be sold at such discount from their face amounts, as shall be agreed upon the Interactive Data Electronic Application system when used by the Dealer and the Issuer; shall have a maturity not exceeding 270 days from the date of issuance Commission (exclusive of days of gracecollectively, “EXXXX”); and shall not contain any provision for extension, renewal or automatic "rollover." The Notes shall be issued in the ordinary course of the Issuer's business.
1.4 The authentication, delivery and payment of the Notes shall be effected in accordance with the Issuing and Paying Agency Agreement and the Notes shall be either individual bearer physical certificates or represented by book-entry Notes registered in the name of DTC or its nominee in the form or forms annexed to the Issuing and Paying Agency Agreement.
1.5 If the Issuer and the Dealer shall agree on the terms of the purchase of any Note by the Dealer or the sale of any Note arranged by the Dealer (including, but not limited to, agreement with respect to the date of issue, purchase price, principal amount, maturity and interest rate (in the case of interest-bearing Notes) or discount thereof (in the case of Notes issued on a discount basis), and appropriate compensation for the Dealer's services hereunder) pursuant to this Agreement, the Issuer shall cause such Note to be issued and delivered in accordance with the terms of the Issuing and Paying Agency Agreement and payment for such Note shall be made by the purchaser thereof, either directly or through the Dealer, to the Issuer. Except as otherwise agreed, in the event that the Dealer is acting as an agent and a customer shall either fail to accept delivery of or make payment for a Note on the date fixed for settlement, the Dealer shall promptly notify the Issuer, and if the Dealer has theretofore paid the Issuer for the Note, the Issuer will promptly return such funds to the Dealer against its return of the Note to the Issuer, in the case of a certificated Note, and upon notice of such failure in the case of a book-entry Note. If such failure occurred for any reason other than default by the Dealer, the Issuer shall reimburse the Dealer on an equitable basis for the Dealer's loss of the use of such funds for the period such funds were credited to the Issuer's account.
Appears in 1 contract
Samples: Note Distribution Agreement (Ladenburg Thalmann Financial Services Inc.)
Issuance and Sale of Notes. 1.1 While The Company agrees that, from time to time during the term of this Agreement, on the terms and subject to the conditions set forth herein, it may issue and sell through FBR the Company’s 7.50% Senior Notes due 2027 (ithe “2027 Notes”) and the Company’s 7.50% Senior Notes due 2021 (the “2021 Notes” and collectively with the 2027 Notes, the “Notes”) be issued under an indenture dated as of November 2, 2016 (the “Base Indenture”), as supplemented by the First Supplemental Indenture dated as of November 2, 2016 (the “First Supplemental Indenture”, and as supplemented by the Second Supplemental Indenture to be dated as of May 31, 2017 (the “Second Supplemental Indenture”) and, together with the Base Indenture, the “Indenture”), between the Company and U.S. Bank National Association, as trustee (the “Trustee”), from time to time during the term of this Agreement (the “Placement Notes”); provided, however, that in no event shall the Company issue or sell through FBR such number of Placement Notes that (a) exceeds the number or dollar amount of Notes registered on the effective Registration Statement (as defined below) pursuant to which the offering is being made or (b) the Issuer has and shall have no obligation aggregate principal amount of Notes authorized to sell be issued by the Notes board of directors of the Company (the “Board”) from time to time (the lesser of (a) or (b) the “Maximum Amount”). Notwithstanding anything to the Dealer or to permit the Dealer to arrange any sale of the Notes for the account of the Issuer, and (ii) the Dealer has and shall have no obligation to purchase the Notes from the Issuer or to arrange any sale of the Notes for the account of the Issuercontrary contained herein, the parties hereto agree that compliance with the limitations set forth in any case where this Section 1 on the Dealer purchases number of Placement Notes from issued and sold under this Agreement shall be the Issuer, or arranges for sole responsibility of the Company and that FBR shall have no obligation in connection with such compliance. The issuance and sale of Placement Notes by through FBR will be effected pursuant to the IssuerRegistration Statement (as defined below), such although nothing in this Agreement shall be construed as requiring the Company to use the Registration Statement to issue any Placement Notes. The Placement Notes will be purchased issued to Cede & Co., as nominee of the Depository Trust Company (“DTC”) pursuant to a blanket letter of representations (the “DTC Agreement”) to be dated on or sold prior to the date hereof between the Company and DTC. The Indenture will be qualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”). The Company has filed, in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations thereunder (the “Securities Act”), with the Securities and Exchange Commission (the “Commission”), a registration statement on Form S-3, including a prospectus, relating to the Placement Notes to be issued from time to time by the Dealer Company, and which incorporates by reference documents that the Company has filed or will file in reliance on accordance with the representations, warranties, covenants and agreements provisions of the Issuer Securities Exchange Act of 1934, as amended, and the Guarantor contained herein or made pursuant hereto rules and on regulations thereunder (the terms and conditions and in “Exchange Act”). The Company will, if necessary, prepare a prospectus supplement to the manner provided herein.
1.2 So long prospectus included as this Agreement shall remain in effectpart of such registration statement specifically relating to the Placement Notes (the “Prospectus Supplement”). The Company will furnish to FBR, the Issuer shall notfor use by FBR, without the consent copies of the Dealer, offer, solicit or accept offers to purchase, or sell, any Notes or notes substantially similar prospectus relating to the Placement Notes included as part of such registration statement, as supplemented by the Prospectus Supplement. Except where the context otherwise requires, such registration statement, and any post-effective amendment thereto, including all documents filed as part thereof or incorporated by reference therein, and including any information contained in reliance upon a Prospectus (as defined below) subsequently filed with the exemption from registration Commission pursuant to Rule 424(b) under the Securities Act contained or deemed to be a part of such registration statement pursuant to Rule 430B of the Securities Act, is herein called the “Registration Statement.” The prospectus specifically relating to the Placement Notes, including all documents incorporated or deemed incorporated therein by reference to the extent such information has not been superseded or modified in Section 3(a)(3accordance with Rule 412 under the Securities Act (as qualified by Rule 430B(g) thereofof the Securities Act), except (aincluded in the Registration Statement, as it may be supplemented by the Prospectus Supplement, in the form in which such prospectus and/or Prospectus Supplement have most recently been filed by the Company with the Commission pursuant to Rule 424(b) in transactions with one under the Securities Act, is herein called the “Prospectus.” Any reference herein to the Registration Statement, the Prospectus or more dealers which may from time any amendment or supplement thereto shall be deemed to time after refer to and include the date hereof become dealers documents incorporated by reference therein, and any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Notes by executing Registration Statement or the Prospectus shall be deemed to refer to and include the filing after the execution hereof of any document with the Issuer one or more agreements substantially similar to Commission incorporated by reference therein (the “Incorporated Documents”). For purposes of this Agreement, of which all references to the Issuer hereby undertakes Registration Statement, the Prospectus or to provide any amendment or supplement thereto shall be deemed to include the Dealer prompt notice, (b) in transactions most recent copy filed with the other dealers listed on Commission pursuant to its Electronic Data Gathering Analysis and Retrieval System, or if applicable, the Addendum heretoInteractive Data Electronic Application system when used by the Commission (collectively, which are executing agreements “EXXXX”). The Company has entered into that Amended and Restated Agreement and Plan of Merger dated as of March 15, 2017 (the “FBRCO Merger Agreement”) with the Issuer substantially similar to this Agreement contemporaneously herewith or FBR & Co., a Virginia corporation (c“FBRCO”) directly on its own behalf in transactions with persons other than broker-dealers with respect pursuant to which no commission is payable.
1.3 The Notes shall be in FBRCO, effective as of June 1, 2017, became a minimum denomination or minimum amount, whichever is applicable, of $100,000 or integral multiples of $1,000 in excess thereof, will bear such interest rates, if interest bearing, or will be sold at such discount from their face amounts, as shall be agreed upon by the Dealer and the Issuer; shall have a maturity not exceeding 270 days from the date of issuance (exclusive of days of grace); and shall not contain any provision for extension, renewal or automatic "rollover." The Notes shall be issued in the ordinary course wholly-owned subsidiary of the Issuer's business.
1.4 Company (the “Merger”). The authenticationCompany has entered into that Merger Agreement dated as of May 17, delivery 2017 (the “Wxxxxxxxxx Merger Agreement”) by and payment of the Notes shall be effected in accordance with the Issuing and Paying Agency Agreement and the Notes shall be either individual bearer physical certificates or represented by book-entry Notes registered in the name of DTC or its nominee in the form or forms annexed to the Issuing and Paying Agency Agreement.
1.5 If the Issuer and the Dealer shall agree on the terms of the purchase of any Note by the Dealer or the sale of any Note arranged by the Dealer among Wxxxxxxxxx Investment Company, Inc. a Delaware corporation (including, but not limited to, agreement with respect to the date of issue, purchase price, principal amount, maturity and interest rate (in the case of interest-bearing Notes) or discount thereof (in the case of Notes issued on a discount basis“Wxxxxxxxxx”), and appropriate compensation for the Dealer's services hereunder) others pursuant to this Agreementwhich Wxxxxxxxxx shall, subject to the conditions set forth therein, become a wholly-owned subsidiary of the Company (the “Wxxxxxxxxx Merger, and together with the Merger, the Issuer shall cause such Note to be issued and delivered in accordance with the terms of the Issuing and Paying Agency Agreement and payment for such Note shall be made by the purchaser thereof, either directly or through the Dealer, to the Issuer. Except as otherwise agreed, in the event that the Dealer is acting as an agent and a customer shall either fail to accept delivery of or make payment for a Note on the date fixed for settlement, the Dealer shall promptly notify the Issuer, and if the Dealer has theretofore paid the Issuer for the Note, the Issuer will promptly return such funds to the Dealer against its return of the Note to the Issuer, in the case of a certificated Note, and upon notice of such failure in the case of a book-entry Note. If such failure occurred for any reason other than default by the Dealer, the Issuer shall reimburse the Dealer on an equitable basis for the Dealer's loss of the use of such funds for the period such funds were credited to the Issuer's account“Acquisitions”).
Appears in 1 contract
Samples: At Market Issuance Sales Agreement (B. Riley Financial, Inc.)