DM3\7431898.1 BABCOCK & WILCOX ENTERPRISES, INC. 8.125% SENIOR NOTES DUE 2026 At Market Issuance Sales Agreement April 1, 2021 B. Riley Securities, Inc. 299 Park Avenue, 21st Floor New York, New York 10171 Ladies and Gentlemen: Babcock & Wilcox...
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DM3\7431898.1 XXXXXXX & XXXXXX ENTERPRISES, INC. 8.125% SENIOR NOTES DUE 2026 At Market Issuance Sales Agreement April 1, 2021 X. Xxxxx Securities, Inc. 000 Xxxx Xxxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Ladies and Gentlemen: Xxxxxxx & Xxxxxx Enterprises, Inc., a Delaware corporation (the “Company”), confirms its agreement (this “Agreement”) with X. Xxxxx Securities, Inc. (“BRS”) as follows: 1. Issuance and Sale of Notes. 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 (the “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 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) or (b) the “Maximum Amount”). Notwithstanding anything to the contrary contained herein, the parties hereto agree that compliance with the limitations set forth in this Section 1 on the number of Placement Notes issued and sold under this Agreement shall be the sole responsibility of the Company and that BRS shall have no obligation in connection with such compliance. The issuance and sale of Placement Notes through BRS will be effected pursuant to the Registration Statement (as defined below), 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 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 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 shall file, 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
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misleading. The documents incorporated by reference in the Prospectus or any Prospectus Supplement did not, and any further documents filed and incorporated by reference therein will not, when filed with the Commission, contain an untrue statement of a material fact or omit to state a material fact required to be stated in such document or necessary to make the statements in such document, in light of the circumstances under which they were made, not misleading. The foregoing shall not apply to, and the Company neither makes no shall make any representation or warranty in respect of, statements in, or omissions from, any such document made in reliance upon, and in conformity with, information furnished to the Company by BRS specifically for use in the preparation thereof. Notwithstanding anything to the contrary contained in this Agreement, the representations and warranties set forth in this Section 6(b) shall not be made by the Company as of the date of this Agreement. c. The Registration Statement, the Prospectus, any Issuer Free Writing Prospectus or any amendment or supplement thereto, and the Incorporated Documents, when such documents were or are filed with the Commission under the Securities Act or the Exchange Act or became or become effective under the Securities Act, as the case may be, conformed or will conform in all material respects with the requirements of the Securities Act and the Exchange Act, as applicable. d. The Company is not an “ineligible issuer” as defined in Rule 405 under the Securities Act in connection with the offering contemplated hereby pursuant to, and at the times specified in, Rules 164 and 433 under the Securities Act. e. Each of the Company and its Subsidiaries has been duly organized, incorporate, or formed, as applicable, and is validly existing as a corporation or other legal entity as applicable in good standing (or the foreign equivalent thereof) under the laws of its jurisdiction of incorporation, formation, or organization, as applicable. Each of the Company and its Subsidiaries is duly qualified to do business and is in good standing as a foreign corporation or other legal entity in each jurisdiction in which its ownership or lease of its properties or the conduct of its business requires such qualification and has all corporate power and authority necessary to own or hold its properties and to conduct the businesses in which each is engaged as described in the Registration Statement or Prospectus, except where the failure to so qualify or have such power or authority would not reasonably be expected to (i) have, singularly or in the aggregate, a material adverse effect on the condition (financial or otherwise), results of operations, assets, or business of the Company and its Subsidiaries, taken as a whole, or (ii) impair in any material respect the ability of the Company to perform its obligations under this Agreement or to consummate any transactions contemplated by this Agreement, the Registration Statement or the Prospectus (any such effect as described in clauses (i) or (ii), a “Material Adverse Effect”). “Subsidiary” means any significant subsidiary of the Company as defined in Rule 405 under the Securities Act. f. The Company has corporate power and authority to execute and deliver, and perform its obligations under this Agreement, the Indenture, and the Placement Notes. g. This Agreement has been duly authorized, executed and delivered by the Company.
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h. The Indenture has been duly authorized by the Company and, as of the Applicable Time, will be duly executed and delivered by the Company and, assuming it has been executed and delivered by the Trustee, will constitute a valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except as the enforcement thereof may be subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws now or thereafter in effect relating to creditors’ rights generally and (ii) general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or law). i. The Placement Notes have been duly authorized for sale to BRS pursuant to this Agreement and, when executed and delivered by the Company and authenticated by the Trustee pursuant to the provisions of this Agreement and of the Indenture relating thereto, against payment of the consideration set forth in this Agreement, will be valid and legally binding obligations of the Company enforceable in accordance with their terms, subject to (i) applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws now or thereafter in effect relating to creditors’ rights generally and (ii) general principles of equity (regardless of whether enforcement is considered in a proceeding in equity or law), and will be entitled to the benefits of the Indenture relating thereto. j. All issued and outstanding shares of capital stock of the Company outstanding prior to the issuance of the Placement Notes are validly issued, fully paid and non- assessable and were issued in compliance in all material respects with United States federal and applicable state securities laws. All of the Company’s options, warrants and other rights to purchase or exchange any securities for shares of the Company’s capital stock have been duly authorized and validly issued and were issued in compliance in all material respects with United States federal and applicable state securities laws. None of the outstanding shares of capital stock was issued in violation of any preemptive rights, rights of first refusal or other similar rights to subscribe for or purchase securities of the Company. k. The membership interests, capital stock, partnership interests or other similar equity interests, as applicable, of each Subsidiary, have been duly authorized and validly issued, are fully paid and nonassessable and, except to the extent set forth in the Registration Statement and Prospectus, or would not individually or in the aggregate, be reasonably expected to have a Material Adverse Effect, are owned by the Company directly, free and clear of any claim, lien, encumbrance, security interest, restriction upon voting or transfer or any other claim of any third party. l. None of (1) the execution, delivery and performance of this Agreement and the Indenture by the Company and (2) the issuance and sale of the Placement Notes by the Company (with or without notice or lapse of time or both) (x) conflicts with or results in a breach or violation of any of the terms or provisions of, constitutes a default under, gives rise to any right of termination or other right or the cancellation or acceleration of any right or obligation or loss of a benefit under or pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which the Company or any of its Subsidiaries is bound or to which any of the property or assets of the Company or any of its Subsidiaries is subject, except for the A&R Credit Agreement (as defined in the Prospectus) (y) results in any violation of the provisions of the certificate of incorporation
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or bylaws (or analogous governing instruments, as applicable) of the Company or any of its Subsidiaries, or (z) results in any violation of provisions of any law, statute, rule, regulation, judgment, order or decree of any court or governmental agency or body, domestic or foreign, having jurisdiction over the Company or any of its Subsidiaries or any of their properties or assets; except, with respect to clauses (x) or (z), any contravention which would not reasonably be expected to have a Material Adverse Effect or has been waived. m. No consent, approval, authorization or order of, or qualification with, any governmental body or agency or self-regulatory authority is required for the performance by the Company of its obligations under this Agreement, the Indenture, and the Placement Notes, except as have been obtained or as may be required by (1) the securities or Blue Sky laws of the various states, (2) the bylaws, rules and regulations of FINRA or the Exchange, or (3) any necessary qualification under the Trust Indenture Act, in connection with the offer and sale of the Placement Notes. n. Deloitte & Touche LLP, who has audited certain financial statements of the Company and related schedules included or incorporated by reference in the Registration Statement and the Prospectus, is, to the knowledge of the Company, an independent registered public accounting firm with respect to the Company as required by the Securities Act. o. The financial statements, together with the related notes and schedules included or incorporated by reference in the Registration Statement and the Prospectus fairly present, in all material respects, the financial position and the results of operations and changes in financial position of the Company and its consolidated Subsidiaries and other consolidated entities at the respective dates or for the respective periods therein specified. Such statements and related notes and schedules have been prepared in accordance with generally accepted accounting principles in the United States (“GAAP”) applied on a consistent basis throughout the periods involved except as may be set forth in the related notes included or incorporated by reference in the Registration Statement and Prospectus. The financial statements, together with the related notes and schedules, included or incorporated by reference in the Registration Statement and the Prospectus comply in all material respects with the Securities Act and the Exchange Act. No other financial statements or supporting schedules or exhibits are required by the Securities Act to be described, or included or incorporated by reference in the Registration Statement or the Prospectus. There is no pro forma or as adjusted financial information which is required to be included in the Registration Statement or the Prospectus or a document incorporated by reference therein in accordance with the Securities Act which has not been included or incorporated as so required. The pro forma financial statements of the Company and its Subsidiaries and the related notes thereto included or incorporated by reference in to the Registration Statement and the Prospectus present fairly, in all material respects, the information contained therein, have been prepared, in all material respects, in accordance with the Commission’s rules and guidelines with respect to pro forma financial statements and have been properly presented on the bases described therein, and the assumptions used in the preparation thereof are reasonable and the adjustments used therein are appropriate to give effect to the transactions and circumstances referred to therein. p. The Company and its Subsidiaries, on a consolidated basis, do not have any material liabilities or obligations, direct or contingent (including any off-balance sheet obligations or any “variable interest entities” within the meaning of the Financial Accounting Standards
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Board’s Accounting Standards Codification Topic 810), which are not disclosed in the Registration Statement and Prospectus. q. Since the date of the most recent financial statements of the Company included or incorporated by reference in the Registration Statement or the Prospectus, there has not occurred any event or circumstance that has had or would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. r. There is no legal or governmental proceeding, action, suit or claim pending or, to the Company’s knowledge, threatened, to which the Company or any of its Subsidiaries is a party, or to which any of the properties or assets of the Company or any of its Subsidiaries is subject, (i) other than proceedings accurately described in all material respects in the Prospectus or proceedings that, if determined adversely to the Company or any Subsidiary, would not reasonably be expected to have a Material Adverse Effect on the Company and its Subsidiaries, taken as a whole, or on the power or ability of the Company to perform in all material respects its obligations under this Agreement or to consummate the transactions contemplated by the Prospectus, or (ii) that are required to be described in the Registration Statement or the Prospectus and are not so described. s. The Company is not, and, after giving effect to the offering contemplated hereby and the application of the proceeds thereof as described in the Registration Statement and the Prospectus, will not become an “investment company” within the meaning of the Investment Company Act of 1940, as amended, and the rules and regulations of the Commission thereunder. t. The Company and its Subsidiaries have good and marketable title to all real and personal property described in the Registration Statement or Prospectus as being owned by them which is material to the business of the Company and its Subsidiaries, taken as a whole, in each case free and clear of all liens, encumbrances and defects of title except such as are described in the Registration Statement and Prospectus or would not individually or in the aggregate, be reasonably expected to have a Material Adverse Effect or do not materially interfere with the use made of such property by the Company and the Subsidiaries; and any real property and buildings held under lease by the Company and its Subsidiaries are held by them under valid, subsisting and enforceable leases except such as are described in the Registration Statement and Prospectus or would not reasonably be expected to have a Material Adverse Effect or do not materially interfere with the use made of such property by the Company and the Subsidiaries. u. Except as disclosed in the Registration Statement and Prospectus, neither the Company nor any of its Subsidiaries is in violation of any statute, rule, regulation, decision or order of any governmental agency or body or any court, relating to the use, disposal or release of hazardous or toxic substances or relating to the protection or restoration of the environment or human exposure to hazardous or toxic substances (collectively, “Environmental Laws”), operates any real property contaminated with any substance that is subject to any Environmental Laws, is liable for any off-site disposal or contamination pursuant to any Environmental Laws, or is subject to any claim relating to any Environmental Laws, which violation, contamination, liability or claim would individually or in the aggregate reasonably be expected to have a Material Adverse Effect; and the Company is not aware of any pending investigation of the Company which would reasonably be expected to lead to such a claim.
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v. Except as described in the Registration Statement and Prospectus, the Company and its Subsidiaries own or possess, or have the right to use or can acquire on reasonable terms, adequate trademarks, trade names and other rights to inventions, know-how, patents, copyrights, confidential information and other intellectual property (collectively, “Intellectual Property Rights”) necessary to conduct the business now operated by them, or presently employed by them, and have not received any notice of infringement of or conflict with asserted rights of others against the Company with respect to any Intellectual Property Rights, except such as will not individually or in the aggregate reasonably be expected to have a Material Adverse Effect. w. The Company maintains a system of internal accounting and other controls designed to provide reasonable assurances that (i) transactions are executed in accordance with management’s general or specific authorizations; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with GAAP and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management’s general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. Except as described in the Registration Statement and Prospectus, (A) none of the Company, or to the Company’s knowledge, its board of directors and audit committee, is aware of any “significant deficiencies” or “material weaknesses” (each as defined by the Public Company Accounting Oversight Board) in its internal control over financial reporting, or any fraud, whether or not material, that involves management or other employees of the Company who have a significant role in the Company’s internal controls all as of the date of this Agreement, and (B) since the end of the Company’s most recent audited fiscal year, there has been no change in the Company’s internal control over financial reporting that has materially affected, or is reasonably likely to materially affect, the Company’s internal control over financial reporting. x. No relationship, direct or indirect, exists between or among the Company or any of its Subsidiaries, on the one hand, and the directors, officers, stockholders (or analogous interest holders), customers or suppliers of the Company or any of its Subsidiaries or any of their affiliates, on the other hand, which is required to be described in the Registration Statement or the Prospectus or a document incorporated by reference therein and which is not so described. y. Neither the Company nor any of its Subsidiaries, nor, to the knowledge of the Company, any of its directors, officers, agents, employees, affiliates or other person acting on their behalf is aware of or has taken any action, directly or indirectly, that has violated or would result in a violation by such persons of the Foreign Corrupt Practices Act of 1977, as amended, and the rules and regulations thereunder (the “FCPA”), including, without limitation, making use of the mails or any means or instrumentality of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or authorization of the payment of any money, or other property, gift, promise to give, or authorization of the giving of anything of value to any “foreign official” (as such term is defined in the FCPA) or any foreign political party or official thereof or any candidate for foreign political office, in contravention of the FCPA. The Company and its Subsidiaries have instituted and maintain policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, continued compliance therewith. z. The operations of the Company and its Subsidiaries are and have been conducted at all times, in compliance with applicable financial recordkeeping and reporting
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requirements of the Currency and Foreign Transactions Reporting Act of 1970, as amended, the money laundering statutes of all applicable jurisdictions, the rules and regulations thereunder and any related or similar applicable rules, regulations or guidelines, issued, administered or enforced by any governmental agency having jurisdiction over the Company (collectively, the “Money Laundering Laws”) except where the failure to be in such compliance would not reasonably be expected to result in a Material Adverse Effect; and no action, suit or proceeding by or before any court or governmental agency, authority or body or any arbitrator involving the Company or any of its Subsidiaries with respect to the Money Laundering Laws is pending or, to the knowledge of the Company, threatened. aa. Neither the Company nor any of its Subsidiaries is currently subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will not directly or indirectly use the proceeds of this offering contemplated hereby, or lend, contribute or otherwise make available such proceeds to any Subsidiary, joint venture partner or other person or entity, for the purpose of financing the activities of any person currently subject to any U.S. sanctions administered by OFAC. bb. No person or entity has the right to require registration of any securities of the Company or any of its Subsidiaries under the Securities Act because of the filing or effectiveness of the Registration Statement, except (i) as set forth therein or in the Registration Statement and Prospectus or (ii) as provided under the Registration Rights Agreement, dated as of April 30, 2019, by and among the Company and certain investors party thereto. cc. Neither the Company nor any of its Subsidiaries has incurred any liability for any finder’s fee or like payment in connection with the offering contemplated hereby or any transaction contemplated by this Agreement, except as may otherwise exist with respect to BRS pursuant to this Agreement. dd. No forward-looking statement (within the meaning of Section 27A of the Securities Act and Section 21E of the Exchange Act) contained in either the Registration Statement or the Prospectus has been made or reaffirmed without a reasonable basis or has been disclosed other than in good faith. ee. The Company is subject to, and in compliance in all material respects with, the reporting requirements of Section 13 or Section 15(d) of the Exchange Act. As of the filing date of the Registration Statement and as of any update of the Registration Statement pursuant to Section 10(a)(3) of the Securities Act (including the filing of any Annual Report on Form 10-K), the Company was eligible to file a “shelf” Registration Statement on Form S-3 with the Commission. ff. The Company is in compliance in all material respects with all applicable provisions of the Xxxxxxxx-Xxxxx Act of 2002 and all applicable rules and regulations promulgated thereunder or is implementing the provisions thereof that are currently in effect. gg. Except as otherwise disclosed in the Registration Statement and Prospectus, each of the Company and its Subsidiaries possess such valid and current certificates, authorizations or permits issued by the appropriate state, federal or foreign regulatory agencies or bodies
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Prospectus (other than any Issuer Free Writing Prospectuses that, pursuant to Rule 433, are not required to be filed with the Commission) shall be deemed to include the copy thereof filed with the Commission pursuant to XXXXX; and all references in this Agreement to “supplements” to the Prospectus shall include, without limitation, any supplements, “wrappers” or similar materials prepared in connection with any offering, sale or private placement of any Placement Notes by BRS outside of the United States. [Remainder of the page intentionally left blank]
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[Signature Page to Sales Agreement] If the foregoing correctly sets forth the understanding between the Company and BRS, please so indicate in the space provided below for that purpose, whereupon this letter shall constitute a binding agreement between the Company and BRS. Very truly yours, XXXXXXX & XXXXXX ENTERPRISES, INC. By: Name: Xxxxx Xxxxxxxx Title: Executive Vice President, Chief Financial Officer, and Chief Accounting Officer
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DM3\7431898.4 SCHEDULE 1 FORM OF PLACEMENT NOTICE From: Xxxxxxx & Xxxxxx Enterprises, Inc. To: X. Xxxxx Securities, Inc. Attention: [•] Subject: At Market Issuance--Placement Notice Gentlemen: Pursuant to the terms and subject to the conditions contained in the At Market Issuance Sales Agreement between Xxxxxxx & Xxxxxx Enterprises, Inc., a Delaware corporation (the “Company”), and X. Xxxxx Securities, Inc. (“BRS”), dated April 1, 2021, the Company hereby requests that BRS sell up to [____] aggregate amount of the Company’s 8.125% Senior Notes due 2026, at a minimum market price of $ per Placement Note, during the time period beginning [month, day, time] and ending [month, day, time]. Notwithstanding anything to the contrary herein, the Company shall not request BRS to sell, and BRS shall not sell, Placement Notes unless such Placement Notes are issued in a “qualified reopening” as provided for in Treasury Regulation Section 1.1275-2(k)(3).
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DM3\7431898.4 SCHEDULE 2 ________________________ Compensation ________________________ The Company shall pay to BRS in cash, upon each sale of Placement Notes pursuant to this Agreement, an amount equal to up to 3.0% of the gross proceeds from each sale of Placement Notes.
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DM3\7431898.4 SCHEDULE 3 ________________________ Notice Parties ________________________ The Company Xxxxx Xxxxx xxxxxx@xxxxxxx.xxx Xxx Xxxxxxxx xxxxxxxxx@xxxxxxx.xxx BRS Xxxxx Xxxxxxxx xxxxxxxxx@xxxxxxxxx.xxx Xxxxxxx XxXxxxxx xxxxxxxxx@xxxxxxxxx.xxx Xxxxx Xxxxxxxxx xxxxxxxxxx@xxxxxxxxx.xxx with a copy to xxxxxxx@xxxxxxxxx.xxx
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DM3\7431898.4 EXHIBIT 7(1) Form of Representation Date Certificate ___________, 20___ This Representation Date Certificate (this “Certificate”) is executed and delivered in connection with Section 7(1) of the At Market Issuance Sales Agreement (the “Agreement”), dated April 1, 2021, and entered into between Xxxxxxx & Xxxxxx Enterprises, Inc. (the “Company”) and X. Xxxxx Securities, Inc. All capitalized terms used but not defined herein shall have the meanings given to such terms in the Agreement. The undersigned, Xxxxxxx Xxxxx, Chief Executive Officer of the Company, and Xxxxx Xxxxxxxx, Chief Financial Officer of the Company, do hereby certify, solely in their capacity as officers of the Company and not individually, on behalf of the Company pursuant to Section 7(l) of the Agreement, as follows: 1. The representations and warranties of the Company in Section 6 of the Sales Agreement (A) to the extent such representations and warranties are subject to qualifications and exceptions contained therein relating to materiality or Material Adverse Effect (as defined in the Agreements), are true and correct on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof, except for those representations and warranties that speak solely as of a specific date and which were true and correct as of such date, and (B) to the extent such representations and warranties are not subject to any qualifications or exceptions, are, true and correct in all material respects on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof, except for those representations and warranties that speak solely as of a specific date and which were true and correct as of such date. 2. Except as waived by the Agent in writing, each of the covenants required to be performed by the Company in the Agreement on or prior to the applicable Representation Date, has been duly, timely and fully performed in all material respects and each condition required to be complied with by the Company on or prior to the date of the Agreement, this Representation Date, and each such other date prior to the date hereof as set forth in the Agreement has been duly, timely and fully complied with in all material respects. 3. No stop order suspending the effectiveness of the Registration Statement or of any part thereof has been issued, and no proceedings for that purpose have been instituted or are pending or to my knowledge are threatened by any securities or other governmental authority (including, without limitation, the Commission). Each of Xxxxx Xxxxxx LLP, counsel for the BRS, and O’Melveny & Xxxxx LLP, counsel for the Company, are entitled to rely on this Certificate in connection with the respective opinions such firms are rendering pursuant to the Sales Agreement.
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DM3\7431898.4 The undersigned has executed this Representation Date Certificate as of the date first written above. XXXXXXX & XXXXXX ENTERPRISES, INC. By: ___________________________________ Name: _______________________________ Title:
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DM3\7431898.4 EXHIBIT 23 Permitted Issuer Free Writing Prospectuses None.