Representations, Warranties and Covenants of the Underwriter. The Underwriter represents, warrants, covenants and agrees with, the Company that:
(a) It has not provided and will not provide to[, and it shall not permit any Selected Dealer to provide to,] any potential investor any information that would constitute “issuer information” within the meaning of Rule 433(h) under the 1933 Act.
(b) In disseminating information to potential investors, it has complied and will continue to comply fully with[, and it shall cause each Selected Dealer to fully comply with,] the Regulations, including but not limited to Rules 164 and 433 under the 1933 Act and the requirements thereunder for filing and retention of free writing prospectuses.
(c) It has not disseminated and will not disseminate[, and it shall not permit any Selected Dealer to disseminate,] any information relating to the Offered Certificates in reliance on Rule 167 or 426 under the 1933 Act.
(d) It has not disseminated and will not disseminate[, and it shall not permit any Selected Dealer to disseminate,] any information relating to the Offered Certificates in a manner reasonably designed to lead to its broad unrestricted dissemination within the meaning of Rule 433(d) under the 1933 Act.
(e) Each Free Writing Prospectus disseminated by the Underwriter [or any Selected Dealer] bore or will bear the applicable legends required under this Agreement, and no Free Writing Prospectus disseminated by the Underwriter [or any Selected Dealer] bore or will bear any legend proscribed under this Agreement.
(f) Prior to entering into any Contract of Sale, the Underwriter [and each Selected Dealer, as applicable] shall convey the Preliminary Prospectus to each prospective investor. The Underwriter shall maintain[, and shall cause each Selected Dealer to maintain] sufficient records to document its conveyance of the Preliminary Prospectus to each potential investor prior to the formation of the related Contract of Sale and shall maintain such records as required by the Regulations. The Underwriter shall[, and the Underwriter shall cause each Selected Dealer to,] offer the Offered Certificates in accordance with (i) the then current Registration Statement, the Preliminary Prospectus and the Final Prospectus, [(ii) a subscription agreement in form and substance acceptable to the Company,] and (iii) the Deposit Trust Agreement.
(g) Each confirmation of sale with respect to Offered Certificates delivered by the Underwriter [or any Selected Dealer] shall, if such confirmation of sale ...
Representations, Warranties and Covenants of the Underwriter. The Underwriter represents and warrants to, and agrees with, the other parties hereto that the Underwriter shall not sell, offer to sell, solicit any offer to buy or permit any resale of the Notes in any manner other than that provided in the Prospectus.
Representations, Warranties and Covenants of the Underwriter. The Underwriter represents, warrants and covenants as follows:
(a) It is registered as a broker-dealer with the Commission, and is registered to the extent registration is required with the appropriate governmental agency in each State in which it offers or sells the Shares, and is a member of the National Association of Securities Dealers, Inc. ("NASD") and will use its best efforts to maintain such registrations, qualifications and memberships throughout the term of the offering.
(b) To the knowledge of the Underwriter, no action or proceeding is pending against the Underwriter or any of its officers or directors concerning the Underwriter's activities as a broker or dealer that would affect the Company's offering of the Shares.
(c) The Underwriter will offer the Shares only in those states and in the quantities that are identified in the Blue Sky Memoranda from the Company's counsel to the Underwriter that the offering of the Shares has been registered or qualified (or exempt from registration/qualification) for sale under the applicable State statutes and regulations. The Underwriter, however, may offer the Shares in other states if (i) the transaction is exempt from the registration requirements in that State, (ii) the Company's counsel has received notice ten days prior to the proposed sale, and (iii) the Company's counsel does not object within such ten-day period.
(d) The Underwriter, in connection with the offer and sale of the Shares and in the performance of its duties and obligations under this Agreement, agrees to use its best efforts to comply with all applicable federal laws; the laws of the states or other jurisdictions in which the Shares are offered and sold; and the Rules and current written interpretations and policies of the NASD.
(e) The Underwriter is a corporation duly organized, validly existing and in good standing under the laws of the State of Texas with all requisite power and authority to enter into this Agreement and to carry out its obligations hereunder.
(f) This Agreement has been duly authorized, executed and delivered by the Underwriter and is a valid agreement on the part of the Underwriter.
(g) Neither the execution of this Agreement nor the consummation of the transactions contemplated hereby will result in any breach of any of the terms or conditions of, or constitute a default under, the articles of incorporation or bylaws of the Underwriter or any indenture, agreement or other instrument to which the Underwriter is...
Representations, Warranties and Covenants of the Underwriter. (1) The Underwriter hereby represents and warrants to the Corporation, that:
Representations, Warranties and Covenants of the Underwriter. The Underwriter, on its own behalf and on behalf of its U.S. Affiliate, acknowledge that the Offered Shares have not been and will not be registered under the U.S. Securities Act and may not be offered or sold within the United States, except pursuant to an exemption from the registration requirements of the U.S. Securities Act. Accordingly, the Underwriter, on its own behalf and on behalf of its U.S. Affiliate, represents, warrants and covenants to the Company that:
Representations, Warranties and Covenants of the Underwriter. The Underwriter represents, warrants to and agrees with the Company that:
(a) The Underwriter is a corporation duly incorporated and validly existing in good standing under the laws of the jurisdiction in which it is incorporated.
(b) The Underwriter is duly registered as a broker-dealer under the Securities Exchange Act of 1934, as amended, and under the securities laws of Minnesota and of such other states in which it intends to offer or sell the Units, if such registration is required in any such other state, and is a member in good standing of the National Association of Securities Dealers, Inc., and no proceedings have been initiated or threatened to suspend any such registration or membership.
(c) The execution, delivery and performance of this Agreement by the Underwriter, and the consummation of the transactions contemplated hereby, have been duly authorized by the Underwriter, and at the time of its execution, performance, or consummation, will not constitute or result in any breach or violation of any of the terms, provisions or conditions of, or constitute a default under, any federal statute or regulation (including, without limitation, the net capital requirements under Rule 15c-1 of the Securities Exchange Act of 1934) or any statute or regulation of any state in which it intends to offer or sell the Units, or any order, judgment, decree, rule or regulation of any court or governmental agency or body having jurisdiction over the Underwriter or any of its activities or property; and other than registration of the Units under the Act and applicable states securities laws and subject to the favorable review by the National Association of Securities Dealers, Inc., no consent, approval, authorization or order of any court or governmental agency or body is required for the consummation of the transactions contemplated hereby.
(d) There is not now pending or threatened against the Underwriter or any control person of the Underwriter any action or proceeding either in any court of competent jurisdiction or before the Commission, National Association of Securities Dealers, Inc. or the securities authorities of any state, based upon any action or failure to act on the part of the Underwriter or any controlling person of an Underwriter that would restrict the Underwriter's ability to perform its obligations hereunder.
(e) The Units will be offered by the Underwriter only to persons resident in Minnesota and such other states as are mutually designated b...
Representations, Warranties and Covenants of the Underwriter. The Underwriter and U.S. Affiliate jointly and not severally, acknowledges, represents, warrants and covenants to the Company that:
(a) the sale of the Offered Shares in the United States or to, or for the account or benefit of, U.S. Persons will be made only by the Underwriter or its U.S. Affiliate, the initial purchaser of the Offered Shares, pursuant to Rule 144A to persons who are, or are reasonably believed by them to be, Qualified Institutional Buyers, in compliance with any applicable state securities laws of the United States and such purchaser shall have made the representations, warranties and agreements set forth in the QIB Certificate;
(b) the Offered Shares have not been and will not be registered under the 1933 Act or any U.S. state securities laws and may be offered and sold only in transactions exempt from or not subject to the registration requirements of the 1933 Act and applicable state securities laws. It has not offered and sold, and will not offer and sell, any Offered Shares except to persons it reasonably believes to be Qualified Institutional Buyers and it has not arranged for, and will not arrange for, the offer and sale by the Company of any Offered Shares;
(c) it and its affiliates, including its U.S. Affiliate, have not, either directly or through a person acting on its or their behalf, solicited and will not solicit offers for, and have not offered to sell and will not offer to sell, any of the Offered Shares in the United States or to, or for the account or benefit of, U.S. Persons by any form of General Solicitation or General Advertising or in any manner involving a public offering within the meaning of Section 4(a)(2) of the 1933 Act;
(d) it has not entered and will not enter into any contractual arrangement with respect to the distribution of the Offered Shares, except with its U.S. Affiliate, any selling group members or with the prior written consent of the Company;
(e) it shall require each selling group member to agree, for the benefit of the Company, to comply with, and shall use its commercially reasonable efforts to ensure that each selling group member complies with, the provisions of this Schedule A applicable to the Underwriter as if such provisions applied to such selling group member;
(f) all offers and sales of the Offered Shares in the United States or to, or for the account or benefit of, U.S. Persons shall be made by the Underwriter through its U.S. Affiliate (which on the dates of such offers and sales wa...
Representations, Warranties and Covenants of the Underwriter. (1) The Underwriter hereby represents and warrants to the Company that:
(a) it is, and will remain so, until the completion of the Offering, appropriately registered under Canadian Securities Laws so as to permit it to lawfully fulfill its obligations hereunder; and
(b) it has good and sufficient right and authority to enter into this Agreement and complete the transactions contemplated under this Agreement on the terms and conditions set forth herein.
(2) The Underwriter hereby covenants and agrees with the Company to the following:
Representations, Warranties and Covenants of the Underwriter. The Underwriter acknowledges that the Securities have not been and will not be registered under the U.S. Securities Act or the securities laws of any state and may not be offered or sold except in compliance with Rule 903 of Regulation S or pursuant to an exemption from the registration requirements of the U.S. Securities Act and any applicable state securities laws. Accordingly, the Underwriter represents, warrants and covenants to the Corporation that:
1. Except for offers and sales of Securities as permitted in Sections A.6 through A.14 of this Schedule "A", neither the Underwriter, its affiliates nor any persons acting on its or their behalf, has engaged or will engage in: (i) any offer to sell or any solicitation of an offer to buy, any Securities forming part of its allotment (including any Securities purchased by it pursuant to the Underwriting Agreement) to any person in the United States or to a U.S. Person, or a person that is purchasing for the account or benefit of a U.S. Person; (ii) any sale of Securities forming part of its allotment (including any Securities purchased by it pursuant to the Underwriting Agreement) to any purchaser unless, at the time the buy order was or will have been originated, the purchaser was outside the United States and not a U.S. Person, and was not purchasing the Securities for the account or benefit of a U.S. Person, or the Underwriter, its affiliates or persons acting on its behalf reasonably believed that such purchaser was outside the United States and not a U.S. Person, and was not purchasing the Securities for the account or benefit of a U.S. Person; or (iii) any Directed Selling Efforts either during the distribution of the Securities or during the Distribution Compliance Period.
2. It will not offer or sell any Securities prior to the expiration of the Distribution Compliance Period (whether or not part of its unsold allotment), except in accordance with the provisions of Rule 903 of Regulation S, or pursuant to an available exemption from the registration requirements of the U.S. Securities Act.
3. It shall send to any dealer or other person receiving a selling concession, fee or other remuneration to which it sells Securities during the Distribution Compliance Period a confirmation or other notice setting forth the restrictions on offers and sales of such securities in the United States or to or for the account or benefit of U.S. Persons in compliance with Rule 903(b)(2) of Regulation S.
4. It will not of...
Representations, Warranties and Covenants of the Underwriter. (a) The Underwriter:
(i) shall offer the Units for sale to the public in the Canadian Qualifying Jurisdictions and on a private placement basis in the United States, directly and through other investment dealers and brokers (the Underwriter, together with such other investment dealers and brokers, are referred to herein as the "Selling Firms"), only as permitted by and in compliance with all relevant laws and regulatory requirements, upon the terms and conditions set forth in the Preliminary Prospectus and the U.S. Preliminary Offering Memorandum and in the agreement resulting from the Corporation's acceptance of this offer and will require each Selling Firm to so agree;
(ii) shall not solicit offers to purchase or sell the Units so as to require registration thereof or filing of a prospectus or similar document with respect thereto under the laws of any jurisdiction other than the Qualifying Canadian Jurisdictions, and will require each Selling Firm to agree with the Underwriter not to so solicit or sell. For the purposes of this paragraph (a) of this Section 2, the Underwriter shall be entitled to assume that the Units are qualified for Distribution in any of the Qualifying Canadian Jurisdictions where a receipt or similar document for the Final Prospectus shall have been obtained from the applicable Qualifying Authority following the filing of the Final Prospectus;
(iii) covenant and agree that, if they offer to sell or sell any Units in jurisdictions other than the Qualifying Canadian Jurisdictions, such offers and sales shall be effected in accordance and compliance with the applicable laws of such jurisdictions and shall be effected in such manner so as not to subject the Corporation to any additional continuous disclosure or similar reporting requirements under the laws of any jurisdiction outside the Qualifying Canadian Jurisdictions. The provisions of Schedule "C" hereto apply in respect of offers and sales of Units in the United States and to, or for the account or benefit of, U.S. Persons and are incorporated herein by reference. The Underwriter shall cause similar provisions to be contained in any agreements among the Selling Firms;
(iv) shall use all reasonable efforts to complete and to cause the other Selling Firms to complete the Distribution of the Units as soon as practicable;
(v) shall notify the Corporation when, in its opinion, the Underwriter and the other Selling Firms have ceased Distribution of the Units, and shall provide a breakd...
