Conditions of the Agents’ Obligations. The Agents’ obligations to solicit purchases on an agency basis for the Shares or otherwise take any action pursuant to a Transaction Acceptance and to purchase the Shares pursuant to any Terms Agreement shall be subject to the satisfaction of the following conditions: (a) At the Time of Acceptance, at the time of the commencement of trading on the Exchange on the Purchase Date(s) and at the relevant Time of Sale and Agency Settlement Date, or with respect to a Principal Transaction pursuant to a Terms Agreement, at the time of execution and delivery of the Terms Agreement by the Company and at the relevant Time of Sale and Principal Settlement Date: (i) The representations, warranties and agreements on the part of the Carvana Parties herein contained or contained in any certificate of an officer or officers, general partner, managing member or other authorized representative of the Carvana Parties or any subsidiary of the Carvana Parties delivered pursuant to the provisions hereof shall be true and correct in all respects. (ii) Each of the Carvana Parties shall have performed and observed its covenants and other obligations hereunder and/or under any Terms Agreement, as the case may be, in all material respects. (iii) In the case of an Agency Transaction, from the Time of Acceptance until the Agency Settlement Date, or, in the case of a Principal Transaction pursuant to a Terms Agreement, from the time of execution and delivery of the Terms Agreement by the Company until the Principal Settlement Date, trading in the Class A Common Stock on the Exchange shall not have been suspended. (iv) From the date of this Agreement, no event or condition of a type described in Section 3(e) hereof shall have occurred or shall exist, which event or condition is not described in a Permitted Free Writing Prospectus (excluding any amendment or supplement thereto) or the Prospectus (excluding any amendment or supplement thereto) and the effect of which in the judgment of the Agents makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares on the applicable Settlement Date on the terms and in the manner contemplated by this Agreement, any Terms Agreement, any Permitted Free Writing Prospectus and the Prospectus. (v) Subsequent to the relevant Time of Acceptance or, in the case of a Principal Transaction, subsequent to execution of the applicable Terms Agreement, (A) no downgrading shall have occurred in the rating accorded any debt securities or preferred equity securities of or guaranteed by the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined by the Commission for purposes of Section 3(a)(62) of the Exchange Act and (B) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of any debt securities or preferred equity securities of or guaranteed by the Company or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading) in each case that has not been described in the Prospectus or any Permitted Free Writing Prospectus issued prior to any related Time of Sale. (vi) The Shares to be issued pursuant to the Transaction Acceptance or pursuant to a Terms Agreement, as applicable, shall have been approved for listing on the Exchange, subject only to notice of issuance. (vii) (A) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the relevant Settlement Date, prevent the issuance or sale of the Shares and (B) no injunction or order of any federal, state or foreign court shall have been issued that would, as of the relevant Settlement Date, prevent the issuance or sale of the Shares. (viii) (A) No order suspending the effectiveness of the Registration Statement shall be in effect, no proceeding for such purpose or pursuant to Section 8A of the Act shall be pending before or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement pursuant to Rule 401(g)(2) under the Act shall have been received by the Company; (B) the Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of any Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Act); (C) all requests by the Commission for additional information shall have been complied with to the satisfaction of the Agents; and (D) no suspension of the qualification of the Shares for offering or sale in any jurisdiction, and no initiation or threatening of any proceedings for any of such purposes, shall have occurred and be in effect. The Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading at the time the Agents deliver a Transaction Acceptance to the Company or the Company and the Agents execute a Terms Agreement, as the case may be. (ix) No amendment or supplement to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall have been filed to which the Agents shall have reasonably objected in writing. (b) Within two (2) Exchange Business Days after the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, on such Principal Settlement Date, the Agents shall have received the officer’s certificates, opinions and negative assurance letters of counsel and “comfort” letters and other documents provided for under Sections 6(b) through (d), inclusive, unless otherwise agreed to by the Agents. For purposes of clarity and without limitation to any other provision of this Section 7 or elsewhere in this Agreement, the parties hereto agree that the Agents’ obligations, if any, to solicit purchases of Shares on an agency basis or otherwise take any action pursuant to a Transaction Acceptance shall, unless otherwise agreed in writing by the Agents, be suspended during the period from and including a Bring-Down Delivery Date through and including the time that the Agents shall have received the documents described in the preceding sentence.
Appears in 3 contracts
Sources: Distribution Agreement (Carvana Co.), Distribution Agreement (Carvana Co.), Distribution Agreement (Carvana Co.)
Conditions of the Agents’ Obligations. The Agents’ obligations Each Agent’s obligation to solicit purchases on an agency basis for the Shares or otherwise take any action pursuant to a Transaction Acceptance and to purchase the Shares pursuant to any Terms Agreement shall be subject to the satisfaction of the following conditions:
(a) At the Time of Acceptance, at the time of the commencement of trading on the Exchange on the Purchase Date(s) and at the relevant Time of Sale and Agency Settlement Date, or with respect to a Principal Transaction pursuant to a Terms Agreement, at the time of execution and delivery of the Terms Agreement by the Company and at the relevant Time of Sale and Principal Settlement Date:
(i) The representations, warranties and agreements on the part of the Carvana Parties Company herein contained or contained in any certificate of an officer or officers, general partner, managing member or other authorized representative officers of the Carvana Parties or any subsidiary of the Carvana Parties Company delivered pursuant to the provisions hereof shall be true and correct in all respects.
(ii) Each of the Carvana Parties The Company shall have performed and observed its covenants and other obligations hereunder and/or under any Terms Agreement, as the case may be, in all material respects.
(iii) In the case of an Agency Transaction, from the Time of Acceptance until the Agency Settlement Date, or, in the case of a Principal Transaction pursuant to a Terms Agreement, from the time of execution and delivery of the Terms Agreement by the Company until the Principal Settlement Date, trading in the Class A Common Stock on the Exchange shall not have been suspended.
(iv) From the date of this Agreement, no event or condition of a type described in Section 3(e) hereof shall have occurred or shall exist, which event or condition is not described in a any Permitted Free Writing Prospectus (excluding any amendment or supplement thereto) or the Prospectus (excluding any amendment or supplement thereto) and the effect of which in the reasonable judgment of the Agents applicable Agent makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares on the applicable Settlement Date on the terms and in the manner contemplated by this Agreement, any Terms Agreement, any Permitted Free Writing Prospectus and the Prospectus.
(v) Subsequent to the relevant Time of Acceptance or, in the case of a Principal Transaction, subsequent to execution of the applicable Terms Agreement, (A) no downgrading shall have occurred in the rating accorded any debt securities or preferred equity securities of or guaranteed by the Company or any of its subsidiaries the Subsidiaries by any “nationally recognized statistical rating organization,” ”, as such term is defined by the Commission for purposes of Section 3(a)(62) of the Exchange Act and (B) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of any debt securities or preferred equity securities of or guaranteed by the Company or any of its subsidiaries the Subsidiaries (other than an announcement with positive implications of a possible upgrading) in each case that has not been described in the Prospectus or any Permitted Free Writing Prospectus issued prior to any related Time of Sale.
(vi) The Shares to be issued pursuant to the Transaction Acceptance or pursuant to a Terms Agreement, as applicable, shall have been approved for listing on the Exchange, subject only to notice of issuance.
(vii) (A) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the relevant Settlement Date, prevent the issuance or sale of the Shares and (B) no injunction or order of any federal, state or foreign court shall have been issued that would, as of the relevant Settlement Date, prevent the issuance or sale of the Shares.
(viii) (A) No order suspending the effectiveness of the Registration Statement shall be in effect, no proceeding for such purpose or pursuant to Section 8A of the Act shall be pending before or threatened by the Commission Commission, and no notice of objection of the Commission to the use of the Registration Statement pursuant to Rule 401(g)(2) under the Act shall have been received by the Company; (B) the Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of any Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Act); (C) all requests by the Commission for additional information shall have been complied with to the satisfaction of the AgentsAgent; and (D) no suspension of the qualification of the Shares for offering or sale in any jurisdiction, and no initiation or threatening of any proceedings for any of such purposes, shall have occurred and be in effect. The Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading at the time the Agents deliver an Agent delivers a Transaction Acceptance to the Company or the Company and the Agents an Agent execute a Terms Agreement, as the case may be.
(ix) No amendment or supplement to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall have been filed to which the Agents Agent shall have reasonably objected in writing.
(b) Within two (2) Exchange Business Days after the applicable At every Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, on such Principal Settlement Date, the Agents shall have received the officer’s certificates, opinions and negative assurance letters of counsel and a “comfort” letters letter and other documents provided for under Sections 6(b) through (d6(d), inclusive, unless otherwise agreed to by the Agents. For purposes of clarity and without limitation to any other provision of this Section 7 or elsewhere in this Agreement, the parties hereto Company and each of the Agents agree that the Agents’ an Agent’s obligations, if any, to solicit purchases of Shares on an agency basis or otherwise take any action pursuant to a Transaction Acceptance shall, unless otherwise agreed in writing by the Agentssuch Agent, be suspended during the period from and including a Bring-Down Delivery Date through and including the time that the Agents such Agent shall have received the documents described in the preceding sentence.
Appears in 2 contracts
Sources: Distribution Agreement (Century Communities, Inc.), Distribution Agreement (Century Communities, Inc.)
Conditions of the Agents’ Obligations. The Agents’ obligations to solicit purchases on an agency basis for the Shares Units or otherwise take any action pursuant to a Transaction Acceptance Notice that has been accepted by the Partnership and to purchase the Shares Units pursuant to any Terms Agreement Agreement, in either case, by the Agent which is party to such Transaction Notice or Terms Agreement, as applicable (such Agent, the “Applicable Agent”) shall be subject to the satisfaction of the following conditions:
(a) At the Time of Acceptance, at the time of the commencement of trading on the Exchange NYSE on the Purchase Date(s) and at the relevant Time of Sale and Agency Settlement Date, or with respect to a Principal Transaction pursuant to a Terms Agreement, at the time of execution and delivery of the Terms Agreement by the Company Partnership and at the relevant Time of Sale and Principal Settlement Date:
(i) The representations, warranties and agreements on the part of the Carvana Parties Partnership herein contained or contained in any certificate of an officer or officers, officers or the general partner, managing member or other authorized representative counsel of the Carvana Parties or any subsidiary of the Carvana Parties Partnership delivered pursuant to the provisions hereof shall be true and correct in all respects.
(ii) Each of the Carvana Parties The Partnership shall have performed and observed its covenants and other obligations hereunder and/or under any Terms Agreement, as the case may be, in all material respects.
(iii) In the case of an Agency Transaction, from the Time of Acceptance until the Agency Settlement Date, or, in the case of a Principal Transaction pursuant to a Terms Agreement, from the time of execution and delivery of the Terms Agreement by the Company Partnership until the Principal Settlement Date, trading in the Class A Common Stock Units on the Exchange NYSE shall not have been suspended.
(iv) From the date of this Agreement, no event or condition of a type described in Section 3(e) hereof shall have occurred or shall exist, which event or condition is not described in a any Permitted Free Writing Prospectus (excluding any amendment or supplement thereto) or the Prospectus (excluding any amendment or supplement thereto) and the effect of which in the reasonable judgment of the Agents Representative makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares Units on the applicable Settlement Date on the terms and in the manner contemplated by this Agreement, Agreement or any Terms Agreement, as the case may be, any Permitted Free Writing Prospectus and the Prospectus.
(v) Subsequent to the relevant Time of Acceptance or, in the case of a Principal Transaction, subsequent to execution of the applicable Terms AgreementAcceptance, (A) no downgrading shall have occurred in the rating accorded any debt securities or preferred equity securities of or guaranteed by the Company Partnership or any of its subsidiaries Subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined by the Commission for purposes of Section 3(a)(62Rule 436(g)(2) of under the Exchange Securities Act and (B) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of any debt securities or preferred equity securities of or guaranteed by the Company Partnership or any of its subsidiaries Subsidiaries (other than an announcement with positive implications of a possible upgrading) in each case that has is not been described disclosed in the Prospectus or any Permitted Free Writing Prospectus issued prior to any related Time of Sale.
(vi) The Shares Prior to the Settlement Date, the Units to be issued pursuant to the Transaction Acceptance Notice or pursuant to a Terms Agreement, as applicable, shall have been approved for listing on the ExchangeNYSE, subject only to notice of issuance.
(vii) (A) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the relevant Settlement Date, prevent the issuance or sale of the Shares Units and (B) no injunction or order of any federal, state or foreign court shall have been issued that would, as of the relevant Settlement Date, prevent the issuance or sale of the SharesUnits.
(viii) (A) No order suspending the effectiveness of the Registration Statement shall be in effect, no proceeding for such purpose or pursuant to Section 8A of the Securities Act shall be pending before or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement pursuant to Rule 401(g)(2) under the Securities Act shall have been received by the CompanyPartnership; (B) the Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the Commission under the Securities Act (in the case of any Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act); (C) all requests by the Commission for additional information shall have been complied with to the satisfaction of the AgentsRepresentation; and (D) no suspension of the qualification of the Shares Units for offering or sale in any jurisdiction, and no initiation or threatening of any proceedings for any of such purposes, shall will have occurred and be in effect. The Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading at the time the Agents deliver Partnership accepts a Transaction Acceptance to the Company or the Company and the Agents execute a Terms Agreement, as the case may beNotice.
(ix) No amendment or supplement to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall have been filed to which the Agents Representative shall have reasonably objected in writing.
(b) Within two (2) Exchange Business Days after the applicable business days following every Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, on such Principal Settlement Date, the Agents Representative shall have received the officer’s certificates, general counsel’s certificates, opinions and negative assurance letters of counsel and counsel, “comfort” letters letters, and to the extent required by Section 2(j), the chief financial officer’s certificates, and other documents provided for under Sections 6(b) through (de), inclusive, unless otherwise agreed to by the Agents. For purposes of clarity and without limitation to any other provision of this Section 7 or elsewhere in this Agreement, the parties hereto agree that the Agents’ obligations, if any, to solicit purchases of Shares on an agency basis or otherwise take any action pursuant to a Transaction Acceptance shall, unless otherwise agreed in writing by the Agents, be suspended during the period from and including a Bring-Down Delivery Date through and including the time that the Agents shall have received the documents described in the preceding sentence.
Appears in 2 contracts
Sources: Distribution Agreement (Atlas Resource Partners, L.P.), Distribution Agreement (Atlas Resource Partners, L.P.)
Conditions of the Agents’ Obligations. 5.1 The Agents’ obligations to solicit purchases on an agency basis for of the Shares or otherwise take any action pursuant to a Transaction Acceptance and to purchase the Shares pursuant to any Terms Agreement Agent provided herein shall be subject to the satisfaction accuracy of the representations and warranties of the Company herein, to the performance by the Company of its obligations hereunder and to the following additional conditions:
(a) At the Time of Acceptance, at the time of the commencement of trading on the Exchange on the Purchase Date(s) and at the relevant Time of Sale and Agency Settlement Date, or with respect to a Principal Transaction pursuant to a Terms Agreement, at the time of execution and delivery of the Terms Agreement by the Company and at the relevant Time of Sale and Principal Settlement Date:
(i) The representations, warranties and agreements on the part of the Carvana Parties herein contained or contained in any certificate of an officer or officers, general partner, managing member or other authorized representative of the Carvana Parties or any subsidiary of the Carvana Parties delivered pursuant to the provisions hereof shall be true and correct in all respects.
(ii) Each of the Carvana Parties shall have performed and observed its covenants and other obligations hereunder and/or under any Terms Agreement, as the case may be, in all material respects.
(iii) In the case of an Agency Transaction, from the Time of Acceptance until the Agency Settlement Date, or, in the case of a Principal Transaction pursuant to a Terms Agreement, from the time of execution and delivery of the Terms Agreement by the Company until the Principal Settlement Date, trading in the Class A Common Stock on the Exchange shall not have been suspended.
(iv) From the date of this Agreement, no event or condition of a type described in Section 3(e) hereof shall have occurred or shall exist, which event or condition is not described in a Permitted Free Writing Prospectus (excluding any amendment or supplement thereto) or the Prospectus (excluding any amendment or supplement thereto) and the effect of which in the judgment of the Agents makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares on the applicable Settlement Date on the terms and in the manner contemplated by this Agreement, any Terms Agreement, any Permitted Free Writing Prospectus and the Prospectus.
(v) Subsequent to the relevant Time of Acceptance or, in the case of a Principal Transaction, subsequent to execution of the applicable Terms Agreement, (A) no downgrading shall have occurred in the rating accorded any debt securities or preferred equity securities of or guaranteed by the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined by the Commission for purposes of Section 3(a)(62) of the Exchange Act and (B) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of any debt securities or preferred equity securities of or guaranteed by the Company or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading) in each case that has not been described in the Prospectus or any Permitted Free Writing Prospectus issued prior to any related Time of Sale.
(vi) The Shares to be issued pursuant to the Transaction Acceptance or pursuant to a Terms Agreement, as applicable, Registration Statement shall have been approved for listing on the Exchange, subject only to notice of issuance.
(vii) (A) declared effective. No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the relevant Settlement Date, prevent the issuance or sale of the Shares and (B) no injunction or order of any federal, state or foreign court shall have been issued that would, as of the relevant Settlement Date, prevent the issuance or sale of the Shares.
(viii) (A) No stop order suspending the effectiveness of the Registration Statement shall be in effecthave been issued, and no proceeding for such that purpose or pursuant shall have been instituted or, to Section 8A the actual knowledge of the Act shall be pending before Company or the Agent, threatened by the Commission Commission, and no notice any request of objection of the Commission to the use of the Registration Statement pursuant to Rule 401(g)(2) under the Act shall have been received by the Company; (B) the Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of any Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Act); (C) all requests by the Commission for additional information (to be included in the Registration Statement or the Prospectus or otherwise) shall have been complied with to the satisfaction of Agent’s reasonable satisfaction.
(b) The Agent shall not have advised the Agents; and (D) no suspension of Company that the qualification of Registration Statement or the Shares for offering or sale in any jurisdictionProspectus, and no initiation or threatening of any proceedings for any of such purposes, shall have occurred and be in effect. The Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall not contain amendment or supplement thereto, contains an untrue statement of material fact that, in the Agent’s reasonable opinion, is material, or omit omits to state a fact that, in the Agent’s reasonable opinion, is material fact and is required to be stated therein or is necessary to make the statements therein, in the light of the circumstances under which they were made, therein not misleading at the time the Agents deliver a Transaction Acceptance to the Company or the Company and the Agents execute a Terms Agreement, as the case may bemisleading.
(ixc) No amendment or supplement At the time of execution of this Agreement, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, LLP, special counsel to the Registration StatementCompany, the Prospectus or any Permitted Free Writing Prospectus shall have been filed furnished to which the Agents shall have Agent its written opinion, as counsel to the Company, addressed to the Agent and dated the date hereof, in form and substance reasonably objected satisfactory to the Agent, substantially in writing.the form attached hereto as Exhibit A.
(bd) Within two (2) Exchange Business Days after At the applicable Bring-Down Delivery Date or, in the case time of a Bring-Down Delivery Date resulting from a Principal Settlement Date, on such Principal Settlement Date, the Agents shall have received the officer’s certificates, opinions and negative assurance letters execution of counsel and “comfort” letters and other documents provided for under Sections 6(b) through (d), inclusive, unless otherwise agreed to by the Agents. For purposes of clarity and without limitation to any other provision of this Section 7 or elsewhere in this Agreement, the parties hereto agree that the Agents’ obligations, if any, to solicit purchases of Shares on an agency basis or otherwise take any action pursuant to a Transaction Acceptance shall, unless otherwise agreed in writing by the Agents, be suspended during the period from and including a Bring-Down Delivery Date through and including the time that the Agents Agent shall have received from Ernst & Young LLP a letter, in form and substance satisfactory to the documents described Agent, addressed to the Agent and dated the date hereof (i) confirming that they are independent public accountants within the meaning of the Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission, and (ii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the preceding sentenceProspectus, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings.
(e) The Stock shall be included for listing on the NYSE.
(f) There shall not have occurred any event that would permit the Agent to terminate this Agreement pursuant to Section 8.1.
Appears in 1 contract
Conditions of the Agents’ Obligations. The Agents’ obligations Each Agent’s obligation to solicit purchases on an agency basis for the Shares or otherwise take any action pursuant to a Transaction Acceptance and to purchase the Shares pursuant to any Terms Agreement shall be subject to the satisfaction of the following conditions:
(a) At the Time of Acceptance, at the time of the commencement of trading on the Exchange on the Purchase Date(s) and at the relevant Time of Sale and Agency Settlement Date, or with respect to a Principal Transaction pursuant to a Terms Agreement, at the time of execution and delivery of the Terms Agreement by the Company and at the relevant Time of Sale and Principal Settlement Date:
(i) The representations, warranties and agreements on the part of the Carvana Parties Company herein contained or contained in any certificate of an officer or officers, general partner, managing member or other authorized representative officers of the Carvana Parties or any subsidiary of the Carvana Parties Company delivered pursuant to the provisions hereof shall be true and correct in all respects.
(ii) Each of the Carvana Parties The Company shall have performed and observed its covenants and other obligations hereunder and/or under any Terms Agreement, as the case may be, in all material respects.
(iii) In the case of an Agency Transaction, from the Time of Acceptance until the Agency Settlement Date, or, in the case of a Principal Transaction pursuant to a Terms Agreement, from the time of execution and delivery of the Terms Agreement by the Company until the Principal Settlement Date, trading in the Class A Common Stock on the Exchange shall not have been suspended.
(iv) From the date of this Agreement, no event or condition of a type described in Section 3(e) hereof shall have occurred or shall exist, which event or condition is not described in a any Permitted Free Writing Prospectus (excluding any amendment or supplement thereto) or the Prospectus (excluding any amendment or supplement thereto) and the effect of which in the reasonable judgment of the Agents applicable Agent makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares on the applicable Settlement Date on the terms and in the manner contemplated by this Agreement, any Terms Agreement, any Permitted Free Writing Prospectus and the Prospectus.
(v) Subsequent to the relevant Time of Acceptance or, in the case of a Principal Transaction, subsequent to execution of the applicable Terms Agreement, (A) no downgrading shall have occurred in the rating accorded any debt securities or preferred equity securities of or guaranteed by the Company or any of its subsidiaries the Subsidiaries by any “nationally recognized statistical rating organization,” ”, as such term is defined by the Commission for purposes of Section 3(a)(62) of the Exchange Act and (B) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of any debt securities or preferred equity securities of or guaranteed by the Company or any of its subsidiaries the Subsidiaries (other than an announcement with positive implications of a possible upgrading) in each case that has not been described in the Prospectus or any Permitted Free Writing Prospectus issued prior to any related Time of Sale.
(vi) The Shares to be issued pursuant to the Transaction Acceptance or pursuant to a Terms Agreement, as applicable, shall have been approved for listing on the Exchange, subject only to notice of issuance.
(vii) (A) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the relevant Settlement Date, prevent the issuance or sale of the Shares and (B) no injunction or order of any federal, state or foreign court shall have been issued that would, as of the relevant Settlement Date, prevent the issuance or sale of the Shares.
(viii) (A) No order suspending the effectiveness of the Registration Statement shall be in effect, no proceeding for such purpose or pursuant to Section 8A of the Act shall be pending before or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement pursuant to Rule 401(g)(2) under the Act shall have been received by the CompanyCommission; (B) the Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of any Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Act); (C) all requests by the Commission for additional information shall have been complied with to the satisfaction of the AgentsAgent; and (D) no suspension of the qualification of the Shares for offering or sale in any jurisdiction, and no initiation or threatening of any proceedings for any of such purposes, shall have occurred and be in effect. The Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading at the time the Agents deliver an Agent delivers a Transaction Acceptance to the Company or the Company and the Agents an Agent execute a Terms Agreement, as the case may be.
(ix) No amendment or supplement to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall have been filed to which the Agents Agent shall have reasonably objected in writing.
(b) Within two (2) Exchange Business Days after the applicable At every Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, on such Principal Settlement Date, the Agents shall have received the officer’s certificates, opinions and negative assurance letters of counsel and a “comfort” letters letter and other documents provided for under Sections 6(b) through (d6(d), inclusive, unless otherwise agreed to by the Agents. For purposes of clarity and without limitation to any other provision of this Section 7 or elsewhere in this Agreement, the parties hereto Company and each of the Agents agree that the Agents’ an Agent’s obligations, if any, to solicit purchases of Shares on an agency basis or otherwise take any action pursuant to a Transaction Acceptance shall, unless otherwise agreed in writing by the Agentssuch Agent, be suspended during the period from and including a Bring-Down Delivery Date through and including the time that the Agents such Agent shall have received the documents described in the preceding sentence.
Appears in 1 contract
Conditions of the Agents’ Obligations. The obligation of the Agents’ obligations , as the agents of the Company, under this Agreement to solicit purchases on an agency basis for the Shares or otherwise take any action pursuant to a Transaction Acceptance and offers to purchase the Shares Notes, the obligation of any person who has agreed to purchase Notes to make payment for and take delivery of the Notes, and the obligation of any Agent to purchase the Notes pursuant to any Terms Agreement shall be Purchase Agreement, is subject to the satisfaction accuracy, on each Representation Date, of the representations and warranties of the Company contained in this Agreement, to the accuracy of the statements of the Company's officers made in any certificate furnished pursuant to the provisions of this Agreement, to the performance by the Company of its obligations under this Agreement and to each of the following additional terms and conditions:
(a) At The Prospectus as amended or supplemented (including the Time of Acceptance, at the time of the commencement of trading on the Exchange on the Purchase Date(sPricing Supplement) and at the relevant Time of Sale and Agency Settlement Date, or with respect to a Principal Transaction pursuant to a Terms Agreement, at the time of execution and delivery of the Terms Agreement by the Company and at the relevant Time of Sale and Principal Settlement Date:
(i) The representations, warranties and agreements on the part of the Carvana Parties herein contained or contained in any certificate of an officer or officers, general partner, managing member or other authorized representative of the Carvana Parties or any subsidiary of the Carvana Parties delivered pursuant to the provisions hereof shall be true and correct in all respects.
(ii) Each of the Carvana Parties shall have performed and observed its covenants and other obligations hereunder and/or under any Terms Agreement, as the case may be, in all material respects.
(iii) In the case of an Agency Transaction, from the Time of Acceptance until the Agency Settlement Date, or, in the case of a Principal Transaction pursuant to a Terms Agreement, from the time of execution and delivery of the Terms Agreement by the Company until the Principal Settlement Date, trading in the Class A Common Stock on the Exchange shall not have been suspended.
(iv) From the date of this Agreement, no event or condition of a type described in Section 3(e) hereof shall have occurred or shall exist, which event or condition is not described in a Permitted Free Writing Prospectus (excluding any amendment or supplement thereto) or the Prospectus (excluding any amendment or supplement thereto) and the effect of which in the judgment of the Agents makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares on the applicable Settlement Date on the terms and in the manner contemplated by this Agreement, any Terms Agreement, any Permitted Free Writing Prospectus and the Prospectus.
(v) Subsequent to the relevant Time of Acceptance or, in the case of a Principal Transaction, subsequent to execution of the applicable Terms Agreement, (A) no downgrading shall have occurred in the rating accorded any debt securities or preferred equity securities of or guaranteed by the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined by the Commission for purposes of Section 3(a)(62) of the Exchange Act and (B) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of any debt securities or preferred equity securities of or guaranteed by the Company or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading) in each case that has not been described in the Prospectus or any Permitted Free Writing Prospectus issued prior to any related Time of Sale.
(vi) The Shares to be issued pursuant to the Transaction Acceptance or pursuant to a Terms Agreement, as applicable, Notes shall have been approved filed with the Commission pursuant to Rule 424(b) under the Securities Act within the applicable time period prescribed for listing on such filing by the Exchange, subject only to notice of issuance.
(viiRules and Regulations and in accordance with Section 3(a) (A) No action shall have been taken and 3(k); no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the relevant Settlement Date, prevent the issuance or sale of the Shares and (B) no injunction or order of any federal, state or foreign court shall have been issued that would, as of the relevant Settlement Date, prevent the issuance or sale of the Shares.
(viii) (A) No stop order suspending the effectiveness of the Registration Statement or any part thereof nor any order directed to any document incorporated by reference in any Prospectus shall have been issued and no proceeding for that purpose shall have been initiated or, to the knowledge of the Company or the Agents, threatened by the Commission; and any additional information required by the Commission to be included in the Registration Statement or any Prospectus or otherwise shall have been so included. No order suspending the sale of the Notes in any jurisdiction designated by the Agents pursuant to Section 3(h) hereof shall have been issued, and no proceeding for that purpose shall have been initiated or, to the knowledge of the Company or the Agents, threatened.
(b) No Agent shall have discovered and disclosed to the Company on or prior to the Representation Date that the Registration Statement or the Prospectus or any amendment or supplement thereto contains an untrue statement of a fact which, in the opinion of the counsel for the Agents, is material or omits to state a fact which, in the opinion of such counsel, is material and is required to be stated therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters necessary for the authorization and validity of this Agreement, any Purchase Agreement, the Indenture, the Notes, the Registration Statement and the Prospectus, and all other legal matters relating to this Agreement any Purchase Agreement and the transactions contemplated hereby and thereby shall be reasonably satisfactory in effectall material respects to counsel for the Agents, and the Company shall have furnished to such counsel all documents and information that they may reasonably request to enable them to pass upon such matters.
(d) Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel to the Company, or other counsel to the Company satisfactory to the Agents, shall have furnished to the Agents their written opinion, as counsel to the Company, addressed to the Agents and dated the Closing Date, in form and substance acceptable to the Agents to the effect that:
(i) The Indenture has been duly authorized, executed and delivered by the Company and duly qualified under the Trust Indenture Act, and, assuming due authorization, execution and delivery thereof by the Trustee, constitutes a valid and legally binding obligation of the Company enforceable against the Company in accordance with its terms;
(ii) The Notes have been duly authorized by the Company, and, when the terms of a Note and of its issuance and sale have been duly established in accordance with the Indenture, this Agreement and the applicable Purchase Agreement, if any, and when such Note has been duly executed, authenticated, issued and delivered in the manner provided in the Indenture and paid for in accordance with this Agreement and the applicable Purchase Agreement, if any, such Note will be duly and validly issued and delivered by the Company and will constitute a valid and legally binding obligation of the Company, enforceable against the Company in accordance with its terms and entitled to the benefits of the Indenture;
(iii) The Registration Statement was declared effective under the Securities Act as of the date specified in such opinion; any required filing of the Prospectus pursuant to Rule 424(b) of the Rules and Regulations has been made within the time period prescribed by the Rules and Regulations; and, to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and, to the knowledge of such counsel, no proceeding for such that purpose or pursuant to Section 8A of the Act shall be is pending before or threatened by the Commission Commission;
(iv) At the Effective Time, the Registration Statement (including all documents incorporated by reference therein) complied, and on the date of this Agreement, the Prospectus (including all documents incorporated by reference therein) complies, and any further amendments or supplements thereto made by the Company on or prior to the date of such opinion comply (other than, in each case, the financial statements and related schedules and other financial and statistical data included or incorporated by reference therein and the Form T-1 under the Trust Indenture Act, as to which such counsel need express no notice of objection opinion) as to form in all material respects with the requirements of the Commission Securities Act, the Exchange Act and the applicable rules and regulations under said Acts;
(v) The Notes, the Indenture and the capital stock of the Company conform in all material respects to the use descriptions thereof contained or incorporated by reference in the Registration Statement and the Prospectus;
(vi) To such counsel's knowledge, there are no contracts or other documents which are required to be filed as exhibits to the Registration Statement by the Securities Act or by the Rules and Regulations which have not been so filed;
(vii) This Agreement and each Purchase Agreement, if any, have been duly authorized by the Company, and this Agreement and each Purchase Agreement, if any, executed and delivered prior to or at the time of delivery of such opinion have been duly executed and delivered by the Company;
(viii) The sale of the Notes by the Company, compliance by the Company with all of the provisions of this Agreement, each Purchase Agreement, if any, executed and delivered prior to or at the time of delivery of such opinion, the Indenture and the Notes and the consummation by the Company of the transactions contemplated hereby and thereby will not result in a breach or violation of any of the terms or provisions of, or constitute a default under, any agreement or instrument scheduled in such opinion (as in effect on the date of such opinion); and, except for the registration of the Notes under the Securities Act and such consents, approvals, authorizations, registrations or qualifications as may be required under the Trust Indenture Act, the Exchange Act and applicable state or foreign securities laws in connection with the offer and sale of the Notes, no consent, approval, authorization or order of, or filing or registration with, any court or any governmental agency or body is required for the execution, delivery and performance of this Agreement or the applicable Purchase Agreement, if any, by the Company and the consummation by the Company of the transactions contemplated hereby; and
(ix) The Company is not required to be registered, and is not regulated, as an "investment company," as such term is defined under the United States Investment Company Act of 1940. In addition, such counsel shall state that in the course of the preparation of the Registration Statement pursuant and the Prospectus, such counsel has considered the information set forth therein in light of the matters required to Rule 401(g)(2) under the Act shall have been received by be set forth therein and that such counsel has participated in conferences with officers and representatives of the Company; (B) , including its independent public accountants and, with respect to the Prospectus, representatives of and counsel for the Agents, during the course of which the contents of the Registration Statement and the Prospectus and each Permitted Free Writing Prospectus related matters were discussed and, although such counsel shall not have been timely filed with independently checked the Commission under accuracy or completeness of, or otherwise verified, and accordingly are not passing upon, and shall not assume responsibility for, the Act (accuracy, completeness or fairness of the statements contained or incorporated by reference in the case of any Permitted Free Writing ProspectusRegistration Statement and the Prospectus (except as set forth in subparagraph (v) above), and that such counsel has relied as to materiality, to a large extent, upon the extent required by Rule 433 under judgment of officers and representatives of the Act); (C) all requests by the Commission for additional information shall have been complied with Company, as a result of such consideration and participation, nothing has come to the satisfaction attention of such counsel which causes such counsel to believe that the Registration Statement as of its Effective Time or, if later, as of the Agents; and (D) no suspension date of the qualification Company's most recent filing of the Shares for offering or sale in any jurisdictionan Annual Report on Form 10-K (including such Annual Report on Form 10-K), and no initiation or threatening of any proceedings for any of such purposes, shall have occurred and be in effect. The Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall not contain contained an untrue statement of a material fact or omit omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus, as of the date of such opinion, includes an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading at (except that, in each case, such counsel need not express any belief as to the time financial statements and related schedules and other financial and statistical data included or incorporated by reference in the Registration Statement or the Prospectus). In rendering such opinion, such counsel may (A) state that their opinion is limited to the federal laws of the United States, the laws of the State of New York and the General Corporation Law of the State of Delaware, (B) rely as to matters of fact upon the representations contained in this Agreement and the certificates of officers of the Company and it subsidiaries and of public officials; provided that such counsel shall furnish copies thereof to the Agents deliver and state that they believe that the Agents and they are justified in relying upon such certificates and (C) state that their opinions set forth in subparagraphs (A) and (B) above are subject to the qualification that the enforceability of the Company's obligations under the Indenture and the Notes may be limited by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar laws relating to or affecting creditors' rights generally, general equitable principles (whether considered in a Transaction Acceptance proceeding in equity or at law) or by an implied covenant of good faith and fair dealing.
(e) The General Counsel or other counsel of the Company shall have furnished to the Agents his written opinion, addressed to the Agents and dated the Closing Date, in form and substance satisfactory to the Agents to the effect that:
(i) The Company and each of its significant subsidiaries (as defined in Rule 405 under the Securities Act and listed in Annex 1(c)) have been duly incorporated and are validly existing as corporations in good standing under the general corporation laws of their respective jurisdictions of incorporation and have all corporate power and authority necessary to own or hold their respective properties and conduct the businesses in which they are engaged;
(ii) All of the issued and outstanding shares of capital stock of each significant subsidiary have been duly and validly authorized and issued and are fully paid, non-assessable and (except for directors' qualifying shares) owned directly or indirectly by the Company, free and clear of all liens, encumbrances, equities or claims;
(iii) To such counsel's knowledge, and other than as set forth or contemplated in the Prospectus, there are no legal or governmental proceedings pending to which the Company or any of its subsidiaries is a party or of which any property of the Company or any of its subsidiaries is the subject which are reasonably expected to have a material adverse effect on the business, properties, financial position, stockholders' equity or results of operations of the Company and its subsidiaries taken as a whole; and, to such counsel's knowledge, no such proceedings are threatened by governmental authorities or by others;
(iv) The sale of the Notes by the Company and the Agents execute a Terms compliance by the Company with all of the provisions of this Agreement, as each Purchase Agreement, if any, executed and delivered prior to or at the case may be.
time of delivery of such opinion and the Indenture, and the consummation of the transactions contemplated hereby and thereby will not (ixA) No amendment result in a breach or supplement violation of any of the terms or provisions of, or constitute a default under, any material indenture or loan agreement known to such counsel or (B) to the Registration Statementknowledge of such counsel, result in a breach or violation of any of the Prospectus terms or provisions of, or constitute a default under, any Permitted Free Writing Prospectus shall have been filed material, mortgage, deed of trust or other material agreement or instrument to which the Agents shall have reasonably objected Company or any of its significant subsidiaries is a party or by which the Company or any of its significant subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, nor will such actions result in writing.any violation of the provisions of the charter or by-laws of the Company or any significant subsidiary or of any statute or any order, rule or regulation known to such counsel of any court or governmental agency or body having jurisdiction over the Company or any of its subsidiaries or any of their properties or assets (except that such counsel need express no opinion with respect to applicable state or foreign securities laws);
(bv) Within two To such counsel's knowledge, neither the Company nor any significant subsidiary (2A) Exchange Business Days after is in violation of its charter or by-laws, (B) is in default, and no event has occurred, which, with notice or lapse of time or both, would constitute a default, in the applicable Bring-Down Delivery Date ordue performance or observance of any term, covenant or condition contained in any material indenture, mortgage, deed of trust, loan agreement or other material agreement or instrument to which it is a party or by which it is bound or to which any of its properties or assets is subject or (C) is in violation of any law, ordinance, governmental rule, regulation or court decree to which it or its property or assets may be subject or has failed to obtain any license, permit, certificate, franchise or other governmental authorization or permit necessary to the ownership of its property or to the conduct of its business except, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, on such Principal Settlement Date, the Agents shall have received the officer’s certificates, opinions clauses (B) and negative assurance letters of counsel and “comfort” letters and other documents provided for under Sections 6(b) through (dC), inclusivefor those defaults, unless otherwise agreed violations or failures which, either individually or in the aggregate, are not reasonably expected to have a material adverse effect on the business, properties, financial position, stockholders' equity or results of operations of the Company and its subsidiaries taken as a whole; and
(vi) To such counsel's knowledge, there are no contracts, agreements or understandings between the Company and any person granting such person the right to require the Company to include any securities owned or to be owned by such person in the Agents. For purposes securities registered pursuant to the Registration Statement or, except as described in the Prospectus or listed in Annex 1(f), to require the Company to file any other registration statement under the Securities Act (other than a registration statement on Form S-8) with respect to any securities of clarity and without limitation the Company owned or to be owned by such person or to require the Company to include such securities in any securities being registered pursuant to any other provision registration statement filed by the Company under the Securities Act. In rendering such opinion, such counsel may (i) state that his opinion is limited to the federal laws of this Section 7 or elsewhere in this Agreementthe United States, the parties hereto agree laws of the State of Nebraska and the General Corporation Law of the State of Delaware and (ii) rely as to matters of fact upon certificates of officers of the Company and its subsidiaries and of public officials; provided that the Agents’ obligations, if any, to solicit purchases of Shares on an agency basis or otherwise take any action pursuant to a Transaction Acceptance shall, unless otherwise agreed in writing by the Agents, be suspended during the period from and including a Bring-Down Delivery Date through and including the time that the Agents shall have received the documents described in the preceding sentence.such couns
Appears in 1 contract
Conditions of the Agents’ Obligations. The Agents’ obligations to solicit purchases on an agency basis for the Shares or otherwise take any action pursuant to a Transaction Acceptance and to purchase the Shares pursuant to any Terms Agreement shall be subject to the satisfaction of the following conditions:
(a) At the Time of Acceptance, at the time of the commencement of trading on the Exchange on the Purchase Date(s) and at the relevant Time of Sale and Agency Settlement Date, or with respect to a Principal Transaction pursuant to a Terms Agreement, at the time of execution and delivery of the Terms Agreement by the Company and at the relevant Time of Sale and Principal Settlement Date:
(i) The representations, warranties and agreements on the part of the Carvana Parties herein contained or contained in any certificate of an officer or officers, general partner, managing member or other authorized representative of the Carvana Parties or any subsidiary of the Carvana Parties delivered pursuant to the provisions hereof shall be true and correct in all respects.
(ii) Each of the Carvana Parties shall have performed and observed its covenants and other obligations hereunder and/or under any Terms Agreement, as the case may be, in all material respects.
(iii) In the case of an Agency Transaction, from the Time of Acceptance until the Agency Settlement Date, or, in the case of a Principal Transaction pursuant to a Terms Agreement, from the time of execution and delivery of the Terms Agreement by the Company until the Principal Settlement Date, trading in the Class A Common Stock and the Rights on the Exchange shall not have been suspended.
(iv) From the date of this Agreement, no event or condition of a type described in Section 3(e) hereof shall have occurred or shall exist, which event or condition is not described in a Permitted Free Writing Prospectus (excluding any amendment or supplement thereto) or the Prospectus (excluding any amendment or supplement thereto) and the effect of which in the judgment of the Agents makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares on the applicable Settlement Date on the terms and in the manner contemplated by this Agreement, any Terms Agreement, any Permitted Free Writing Prospectus and the Prospectus.
(v) Subsequent to the relevant Time of Acceptance or, in the case of a Principal Transaction, subsequent to execution of the applicable Terms Agreement, (A) no downgrading shall have occurred in the rating accorded any debt securities or preferred equity securities of or guaranteed by the Company or any of its subsidiaries by any “nationally recognized statistical rating organization,” as such term is defined by the Commission for purposes of Section 3(a)(62) of the Exchange Act and (B) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of any debt securities or preferred equity securities of or guaranteed by the Company or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading) in each case that has not been described in the Prospectus or any Permitted Free Writing Prospectus issued prior to any related Time of Sale.
(vi) The Shares to be issued pursuant to the Transaction Acceptance or pursuant to a Terms Agreement, as applicable, shall have been approved for listing on the Exchange, subject only to notice of issuance.
(vii) (A) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the relevant Settlement Date, prevent the issuance or sale of the Shares and (B) no injunction or order of any federal, state or foreign court shall have been issued that would, as of the relevant Settlement Date, prevent the issuance or sale of the Shares.
(viii) (A) No order suspending the effectiveness of the Registration Statement shall be in effect, no proceeding for such purpose or pursuant to Section 8A of the Act shall be pending before or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement pursuant to Rule 401(g)(2) under the Act shall have been received by the Company; (B) the Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of any Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Act); (C) all requests by the Commission for additional information shall have been complied with to the satisfaction of the Agents; and (D) no suspension of the qualification of the Shares for offering or sale in any jurisdiction, and no initiation or threatening of any proceedings for any of such purposes, shall have occurred and be in effect. The Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading at the time the Agents deliver a Transaction Acceptance to the Company or the Company and the Agents execute a Terms Agreement, as the case may be.
(ix) No amendment or supplement to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall have been filed to which the Agents shall have reasonably objected in writing.
(b) Within two (2) Exchange Business Days after the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, on such Principal Settlement Date, the Agents shall have received the officer’s certificates, opinions and negative assurance letters of counsel and “comfort” letters and other documents provided for under Sections 6(b) through (d), inclusive, unless otherwise agreed to by the Agents. For purposes of clarity and without limitation to any other provision of this Section 7 or elsewhere in this Agreement, the parties hereto agree that the Agents’ obligations, if any, to solicit purchases of Shares on an agency basis or otherwise take any action pursuant to a Transaction Acceptance shall, unless otherwise agreed in writing by the Agents, be suspended during the period from and including a Bring-Down Delivery Date through and including the time that the Agents shall have received the documents described in the preceding sentence.
Appears in 1 contract
Sources: Distribution Agreement (Carvana Co.)
Conditions of the Agents’ Obligations. The Agents’ obligations Each Agent’s obligation to solicit purchases on an agency basis for the Shares Units or otherwise take any action pursuant to a Transaction Acceptance and to purchase the Shares Units pursuant to any Terms Agreement shall be subject to the satisfaction of the following conditions:. For the avoidance of doubt, the failure of the Selling Unitholder to deliver, or cause to be delivered, any required certificates or opinions called for in this Agreement shall not prevent the Partnership from issuing Primary Units pursuant to this Agreement.
(a) At the Time of Acceptance, at the time of the commencement of trading on the Exchange on the Purchase Date(s) and at the relevant Time of Sale and Agency Settlement Date, or with respect to a Principal Transaction pursuant to a Terms Agreement, at the time of execution and delivery of the Terms Agreement by the Company Partnership, Custodian and Selling Unitholder, as applicable, and at the relevant Time of Sale and Principal Settlement Date:
(i) The representations, warranties and agreements on the part of the Carvana Parties Partnership and the General Partner herein contained or contained in any certificate of an officer or officers, general partner, managing member or other authorized representative of the Carvana Parties Partnership and the General Partner or any subsidiary of the Carvana Parties Partnership and the General Partner delivered pursuant to the provisions hereof shall be true and correct in all respects; it being further understood that such representations, warranties and agreements incorporate any modifications to the representations, warranties and agreements set forth in Sections 3(d), 3(e), 3(i) through (q), and 3(ff) hereof that have arisen in the ordinary course of business and as otherwise would not be reasonably likely to result in a Material Adverse Effect, provided that the Partnership shall have provided, or caused to be provided, information relating to such modifications to each of the Agents, or their agents, as part of the due diligence provided for under this Agreement.
(ii) The representations, warranties and agreements on the part of the Selling Unitholder herein contained or contained in any certificate of an officer or officers, general partner, managing member or other authorized representative of the Selling Unitholder delivered pursuant to the provisions hereof shall be true and correct in all respects; it being further understood that such representations, warranties and agreements incorporate any modifications to the representations, warranties and agreements set forth in Section 4 hereof that have arisen in the ordinary course of business and as otherwise would not be reasonably likely to result in a Material Adverse Effect, provided that the Selling Unitholder shall have provided, or caused to be provided, information relating to such modifications to each of the Agents, or their agents, as part of the due diligence provided for under this Agreement.
(iii) Each of the Carvana Parties Partnership and the General Partner and Selling Unitholder shall have performed and observed its respective covenants and other obligations hereunder and/or under any Terms Agreement, as the case may be, in all material respects.
(iiiiv) In the case of an Agency Transaction, from the Time of Acceptance until the Agency Settlement Date, or, in the case of a Principal Transaction pursuant to a Terms Agreement, from the time of execution and delivery of the Terms Agreement by the Company Partnership, Custodian and Selling Unitholder, as applicable, until the Principal Settlement Date, trading in the Class A Common Stock Units on the Exchange shall not have been suspended.
(ivv) From the date of this Agreement, no event or condition of a type described in Section 3(e3(nn) hereof shall have occurred or shall exist, which event or condition is not described in a Permitted Free Writing Prospectus (excluding any amendment or supplement thereto) or the Prospectus (excluding any amendment or supplement thereto) and the effect of which in the judgment of the Agents makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares Units on the applicable Settlement Date on the terms and in the manner contemplated by this Agreement, any Terms Agreement, any Permitted Free Writing Prospectus and the Prospectus.
(vvi) Subsequent to the relevant Time of Acceptance or, in the case of a Principal Transaction, subsequent to execution of the applicable Terms Agreement, (A) no downgrading shall have occurred in the rating accorded any debt securities or preferred equity securities of or guaranteed by the Company Partnership or any of its subsidiaries by any “nationally recognized statistical rating organization,” ”, as such term is defined by the Commission for purposes of Section 3(a)(62) of the Exchange Act and (B) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of any debt securities or preferred equity securities of or guaranteed by the Company Partnership or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading) in each case that has not been described in the Prospectus or any Permitted Free Writing Prospectus issued prior to any related Time of Sale.
(vivii) The Shares Primary Units to be issued pursuant to the Transaction Acceptance or pursuant to a Terms Agreement, as applicable, shall have been approved for listing on the Exchange, subject only to notice of issuance.
(viiviii) (A) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the relevant Settlement Date, prevent the issuance or sale of the Shares Primary Units or sale of the Secondary Units and (B) no injunction or order of any federal, state or foreign court shall have been issued that would, as of the relevant Settlement Date, prevent the issuance or sale of the SharesPrimary Units or sale of the Secondary Units.
(viiiix) (A) No order suspending the effectiveness of the Partnership Registration Statement or Selling Unitholder Registration Statement, as applicable, shall be in effect, no proceeding for such purpose or pursuant to Section 8A of the Securities Act shall be pending before or threatened by the Commission and no notice of objection of the Commission to the use of the Partnership Registration Statement or Selling Unitholder Registration Statement, as applicable, pursuant to Rule 401(g)(2401(g) under the Securities Act shall have been received by the CompanyPartnership; (B) the Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the Commission under the Securities Act (in the case of any Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act); (C) all requests by the Commission for additional information shall have been complied with to the satisfaction of the Agents; and (D) no suspension of the qualification of the Shares Units for offering or sale in any jurisdiction, and no initiation or threatening of any proceedings for any of such purposes, shall have occurred and be in effect. The Registration StatementStatements, the Prospectus or any Permitted Free Writing Prospectus shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading at the time the Agents deliver an Agent delivers a Transaction Acceptance to the Company Partnership and Custodian or the Company Partnership or Custodian and the Agents an Agent execute a Terms Agreement, as the case may be.
(ixx) No amendment or supplement to the Registration StatementStatements, the Prospectus or any Permitted Free Writing Prospectus shall have been filed to which the Agents shall have reasonably objected in writing.
(b) Within two (2) Exchange Business Days after the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, on such Principal Settlement Date, the Agents shall have received the officer’s certificates, opinions and negative assurance letters of counsel and “comfort” letters and other documents provided for under Sections 6(b) through (d), inclusive, unless otherwise agreed to by the Agents. For purposes of clarity and without limitation to any other provision of this Section 7 or elsewhere in this Agreement, the parties hereto agree that the Agents’ obligations, if any, to solicit purchases of Shares on an agency basis or otherwise take any action pursuant to a Transaction Acceptance shall, unless otherwise agreed in writing by the Agents, be suspended during the period from and including a Bring-Down Delivery Date through and including the time that the Agents shall have received the documents described in the preceding sentence.
Appears in 1 contract
Sources: Distribution Agreement (MPLX Lp)
Conditions of the Agents’ Obligations. The Agents’ obligations Each Agent’s obligation to solicit purchases on an agency basis for the Shares Units or otherwise take any action pursuant to a Transaction Acceptance and to purchase the Shares Units pursuant to any Terms Agreement shall be subject to the satisfaction of the following conditions:
(a) At the Time of Acceptance, at the time of the commencement of trading on the Exchange on the Purchase Date(s) and at the relevant Time of Sale and Agency Settlement Date, or with respect to a Principal Transaction pursuant to a Terms Agreement, at the time of execution and delivery of the Terms Agreement by the Company Partnership and at the relevant Time of Sale and Principal Settlement Date:
(i) The representations, warranties and agreements on the part of the Carvana Parties Partnership and the General Partner herein contained or contained in any certificate of an officer or officers, general partner, managing member or other authorized representative of the Carvana Parties Partnership and the General Partner or any subsidiary of the Carvana Parties Partnership and the General Partner delivered pursuant to the provisions hereof shall be true and correct in all respects.
(ii) Each of the Carvana Parties Partnership and the General Partner shall have performed and observed its respective covenants and other obligations hereunder and/or under any Terms Agreement, as the case may be, in all material respects.
(iii) In the case of an Agency Transaction, from the Time of Acceptance until the Agency Settlement Date, or, in the case of a Principal Transaction pursuant to a Terms Agreement, from the time of execution and delivery of the Terms Agreement by the Company Partnership until the Principal Settlement Date, trading in the Class A Common Stock Units on the Exchange shall not have been suspended.
(iv) From the date of this Agreement, no event or condition of a type described in Section 3(e3(ee) hereof shall have occurred or shall exist, which event or condition is not described in a Permitted Free Writing Prospectus (excluding any amendment or supplement thereto) or the Prospectus (excluding any amendment or supplement thereto) and the effect of which in the judgment of the Agents makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares Units on the applicable Settlement Date on the terms and in the manner contemplated by this Agreement, any Terms Agreement, any Permitted Free Writing Prospectus and the Prospectus.
(v) Subsequent to the relevant Time of Acceptance or, in the case of a Principal Transaction, subsequent to execution of the applicable Terms Agreement, (A) no downgrading shall have occurred in the rating accorded any debt securities or preferred equity securities of or guaranteed by the Company Partnership or any of its subsidiaries by any “nationally recognized statistical rating organization,” ”, as such term is defined by the Commission for purposes of Section 3(a)(62) of the Exchange Act and (B) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of any debt securities or preferred equity securities of or guaranteed by the Company Partnership or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading) in each case that has not been described in the Prospectus or any Permitted Free Writing Prospectus issued prior to any related Time of Sale.
(vi) The Shares Units to be issued pursuant to the Transaction Acceptance or pursuant to a Terms Agreement, as applicable, shall have been approved for listing on the Exchange, subject only to notice of issuance.
(vii) (A) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the relevant Settlement Date, prevent the issuance or sale of the Shares Units and (B) no injunction or order of any federal, state or foreign court shall have been issued that would, as of the relevant Settlement Date, prevent the issuance or sale of the SharesUnits.
(viii) (A) No order suspending the effectiveness of the Registration Statement shall be in effect, no proceeding for such purpose or pursuant to Section 8A of the Securities Act shall be pending before or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement pursuant to Rule 401(g)(2401(g) under the Securities Act shall have been received by the CompanyPartnership; (B) the Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the Commission under the Securities Act (in the case of any Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act); (C) all requests by the Commission for additional information shall have been complied with to the satisfaction of the Agents; and (D) no suspension of the qualification of the Shares Units for offering or sale in any jurisdiction, and no initiation or threatening of any proceedings for any of such purposes, shall have occurred and be in effect. The Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading at the time the Agents deliver an Agent delivers a Transaction Acceptance to the Company Partnership or the Company Partnership and the Agents an Agent execute a Terms Agreement, as the case may be.
(ix) No amendment or supplement to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall have been filed to which the Agents shall have reasonably objected in writing.
(b) Within two (2) Exchange Business Days after the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, on such Principal Settlement Date, the Agents shall have received the officer’s certificates, opinions and negative assurance letters of counsel and “comfort” letters and other documents provided for under Sections 6(b) through (d), inclusive, unless otherwise agreed to by the Agents. For purposes of clarity and without limitation to any other provision of this Section 7 or elsewhere in this Agreement, the parties hereto agree that the Agents’ obligations, if any, to solicit purchases of Shares on an agency basis or otherwise take any action pursuant to a Transaction Acceptance shall, unless otherwise agreed in writing by the Agents, be suspended during the period from and including a Bring-Down Delivery Date through and including the time that the Agents shall have received the documents described in the preceding sentence.
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Sources: Distribution Agreement (MPLX Lp)
Conditions of the Agents’ Obligations. The Agents’ obligations Each Agent’s obligation to solicit purchases on an agency basis for the Shares Securities or otherwise take any action pursuant to a Transaction Acceptance and to purchase the Shares Securities pursuant to any Terms Agreement shall be subject to the satisfaction of the following conditions:
(a) At the Time of Acceptance, at the time of the commencement of trading on the Exchange on the Purchase Date(s) and at the relevant Time of Sale and Agency Settlement Date, or with respect to a Principal Transaction pursuant to a Terms Agreement, at the time of execution and delivery of the Terms Agreement by the Company Partnership and at the relevant Time of Sale and Principal Settlement Date:
(i) The representations, warranties and agreements on the part of the Carvana Parties Partnership and the General Partner herein contained or contained in any certificate of an officer or officers, general partner, managing member or other authorized representative of the Carvana Parties Partnership and the General Partner or any subsidiary of the Carvana Parties Partnership and the General Partner delivered pursuant to the provisions hereof shall be true and correct in all respects.
(ii) Each of the Carvana Parties Partnership and the General Partner shall have performed and observed its respective covenants and other obligations hereunder and/or under any Terms Agreement, as the case may be, in all material respects.
(iii) In the case of an Agency Transaction, from the Time of Acceptance until the Agency Settlement Date, or, in the case of a Principal Transaction pursuant to a Terms Agreement, from the time of execution and delivery of the Terms Agreement by the Company Partnership until the Principal Settlement Date, trading in the Class A Common Stock LP Units on the Exchange shall not have been suspended.
(iv) From the date of this Agreement, no event or condition of a type described in Section 3(e3(gg) hereof shall have occurred or shall exist, which event or condition is not described in a Permitted Free Writing Prospectus (excluding any amendment or supplement thereto) or the Prospectus (excluding any amendment or supplement thereto) and the effect of which in the judgment of the Agents makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares Securities on the applicable Settlement Date on the terms and in the manner contemplated by this Agreement, any Terms Agreement, any Permitted Free Writing Prospectus and the Prospectus.
(v) Subsequent to the relevant Time of Acceptance or, in the case of a Principal Transaction, subsequent to execution of the applicable Terms Agreement, (A) no downgrading shall have occurred in the rating accorded any debt securities or preferred equity securities of or guaranteed by the Company Partnership or any of its subsidiaries by any “nationally recognized statistical rating organization,” ”, as such term is defined by the Commission for purposes of Section 3(a)(62) of the Exchange Act and (B) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of any debt securities or preferred equity securities of or guaranteed by the Company Partnership or any of its subsidiaries (other than an announcement with positive implications of a possible upgrading) in each case that has not been described in the Prospectus or any Permitted Free Writing Prospectus issued prior to any related Time of Sale.
(vi) The Shares Securities to be issued pursuant to the Transaction Acceptance or pursuant to a Terms Agreement, as applicable, shall have been approved for listing on the Exchange, subject only to notice of issuance.
(vii) (A) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the relevant Settlement Date, prevent the issuance or sale of the Shares Securities and (B) no injunction or order of any federal, state or foreign court shall have been issued that would, as of the relevant Settlement Date, prevent the issuance or sale of the SharesSecurities.
(viii) (A) No order suspending the effectiveness of the Registration Statement shall be in effect, no proceeding for such purpose or pursuant to Section 8A of the Securities Act shall be pending before or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement pursuant to Rule 401(g)(2401(g) under the Securities Act shall have been received by the CompanyPartnership; (B) the Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the Commission under the Securities Act (in the case of any Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Securities Act); (C) all requests by the Commission for additional information shall have been complied with to the satisfaction of the Agents; and (D) no suspension of the qualification of the Shares Securities for offering or sale in any jurisdiction, and no initiation or threatening of any proceedings for any of such purposes, shall have occurred and be in effect. The Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading at the time the Agents deliver an Agent delivers a Transaction Acceptance to the Company Partnership or the Company Partnership and the Agents an Agent execute a Terms Agreement, as the case may be.
(ix) No amendment or supplement to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall have been filed to which the Agents shall have reasonably objected in writing.
(b) Within two (2) three Exchange Business Days after the applicable Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, on such Principal Settlement Date, the Agents shall have received the officer’s officers’ certificates, opinions and negative assurance letters of counsel and “comfort” letters and other documents provided for required under Sections 6(b) through (d6(d), inclusive, unless otherwise agreed to by the Agents. For purposes of clarity and without limitation to any other provision of this Section 7 or elsewhere in this Agreement, the parties hereto agree that the Agents’ obligations, if any, to solicit purchases of Shares Securities on an agency basis or otherwise take any action pursuant to a Transaction Acceptance shall, unless otherwise agreed in writing by the Agents, be suspended during the period from and including a Bring-Down Delivery Date through and including the time that the Agents shall have received the documents described in the preceding sentence.
Appears in 1 contract
Conditions of the Agents’ Obligations. The Agents’ obligations Each Agent’s obligation to solicit purchases on an agency basis for the Shares or otherwise take any action pursuant to a Transaction Acceptance and to purchase the Shares pursuant to any Terms Agreement shall be subject to the satisfaction of the following conditions:
(a) At the Time of Acceptance, at the time of the commencement of trading on the Exchange on the Purchase Date(s) and at the relevant Time of Sale and Agency Settlement Date, or with respect to a Principal Transaction pursuant to a Terms Agreement, at the time of execution and delivery of the Terms Agreement by the Company and at the relevant Time of Sale and Principal Settlement Date:
(i) The representations, warranties and agreements on the part of the Carvana Parties Company herein contained or contained in any certificate of an officer or officers, general partner, managing member or other authorized representative officers of the Carvana Parties or any subsidiary of the Carvana Parties Company delivered pursuant to the provisions hereof shall be true and correct in all respects.
(ii) Each of the Carvana Parties The Company shall have performed and observed its covenants and other obligations hereunder and/or under any Terms Agreement, as the case may be, in all material respects.
(iii) In the case of an Agency Transaction, from the Time of Acceptance until the Agency Settlement Date, or, in the case of a Principal Transaction pursuant to a Terms Agreement, from the time of execution and delivery of the Terms Agreement by the Company until the Principal Settlement Date, trading in the Class A Common Stock on the Exchange shall not have been suspended.
(iv) From the date of this Agreement, no event or condition of a type described in Section 3(e) hereof shall have occurred or shall exist, which event or condition is not described in a any Permitted Free Writing Prospectus (excluding any amendment or supplement thereto) or the Prospectus (excluding any amendment or supplement thereto) and the effect of which in the reasonable judgment of the Agents applicable Agent makes it impracticable or inadvisable to proceed with the offering, sale or delivery of the Shares on the applicable Settlement Date on the terms and in the manner contemplated by this Agreement, any Terms Agreement, any Permitted Free Writing Prospectus and the Prospectus.
(v) Subsequent to the relevant Time of Acceptance or, in the case of a Principal Transaction, subsequent to execution of the applicable Terms Agreement, (A) no downgrading shall have occurred in the rating accorded any debt securities or preferred equity securities of or guaranteed by the Company or any of its subsidiaries the Subsidiaries by any “nationally recognized statistical rating organization,” ”, as such term is defined by the Commission for purposes of Section 3(a)(62) of the Exchange Act and (B) no such organization shall have publicly announced that it has under surveillance or review, or has changed its outlook with respect to, its rating of any debt securities or preferred equity securities of or guaranteed by the Company or any of its subsidiaries the Subsidiaries (other than an announcement with positive implications of a possible upgrading) in each case that has not been described in the Prospectus or any Permitted Free Writing Prospectus issued prior to any related Time of Sale.
(vi) The Shares to be issued pursuant to the Transaction Acceptance or pursuant to a Terms Agreement, as applicable, shall have been approved for listing on the Exchange, subject only to notice of issuance.
(vii) (A) No action shall have been taken and no statute, rule, regulation or order shall have been enacted, adopted or issued by any federal, state or foreign governmental or regulatory authority that would, as of the relevant Settlement Date, prevent the issuance or sale of the Shares and (B) no injunction or order of any federal, state or foreign court shall have been issued that would, as of the relevant Settlement Date, prevent the issuance or sale of the Shares.
(viii) (A) No order suspending the effectiveness of the Registration Statement shall be in effect, no proceeding for such purpose or pursuant to Section 8A of the Act shall be pending before or threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement pursuant to Rule 401(g)(2) under the Act shall have been received by the CompanyCommission; (B) the Prospectus and each Permitted Free Writing Prospectus shall have been timely filed with the Commission under the Act (in the case of any Permitted Free Writing Prospectus, to the extent required by Rule 433 under the Act); (C) all requests by the Commission for additional information shall have been complied with to the satisfaction of the AgentsAgent; and (D) no suspension of the qualification of the Shares for offering or sale in any jurisdiction, and no initiation or threatening of any proceedings for any of such purposes, shall have occurred and be in effect. The Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall not contain an untrue statement of material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading at the time the Agents deliver an Agent delivers a Transaction Acceptance to the Company or the Company and the Agents an Agent execute a Terms Agreement, as the case may be.
(ix) No amendment or supplement to the Registration Statement, the Prospectus or any Permitted Free Writing Prospectus shall have been filed to which the Agents Agent shall have reasonably objected in writing.
(b) Within two (2) Exchange Business Days after the applicable At every Bring-Down Delivery Date or, in the case of a Bring-Down Delivery Date resulting from a Principal Settlement Date, on such Principal Settlement Date, the Agents shall have received the officer’s certificates, opinions and negative assurance letters of counsel and a “comfort” letters letter and other documents provided for under Sections 6(b) through (d6(d), inclusive, unless otherwise agreed to by the Agents. For purposes of clarity and without limitation to any other provision of this Section 7 or elsewhere in this Agreement, the parties hereto Company and each of the Agents agree that the Agents’ an Agent’s obligations, if any, to solicit purchases of Shares on an agency basis or otherwise take any action pursuant to a Transaction Acceptance shall, unless otherwise agreed in writing by the Agentssuch Agent, be suspended during the period from and including a Bring-Down Delivery Date through and including the time that the Agents such Agent shall have received the documents described in the preceding sentence.
Appears in 1 contract