Conditions to the Obligations of the Manager Sample Clauses: 454 Samples

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (i) The Company shall have requested and caused the Company Counsel to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The Company shall have requested and caused Maryland Counsel to furnish to the Manager, on every date specified in Section 4(m) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreement. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chief Executive Officer or the President and the principal financial or accounting officer of the Company, on behalf of the Company, dated as of such date, to the effect that the signers of such certificate have examined the Registra

Appears in 5 contracts

Sources: Equity Distribution Agreement (LTC Properties Inc), Equity Distribution Agreement (LTC Properties Inc), Equity Distribution Agreement (LTC Properties Inc)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the ~~Company~~ Transaction Entities contained herein as of the Execution Time, each Representation Date, and as of each Applicable ~~Time,~~ Time and Settlement ~~Date and Time of Delivery~~Date, (ii) to the performance by each of the ~~Company~~ Transaction Entities of its obligations ~~hereunder~~ hereunder, (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (~~iii~~iv) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b); each Interim Prospectus Supplement, if any, shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The Company shall have requested and caused the Company Counsel to furnish to the Manager, on ~~every date specified in Section 4(l) of this Agreement~~each Representation Date, its opinion, dated as of such date and addressed to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described substantially in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken form attached hereto as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation LawExhibit A-1. Such counsel shall also have furnished to the Manager, on ~~every date specified in Section 4(l) of this Agreement~~each Representation Date, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained substantially in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, form attached hereto as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement DateExhibit A-2. (c) The Company shall have requested and caused Maryland ~~Counsel~~ Counsel, to furnish to the Manager, on ~~every date specified in Section 4(m) of this Agreement~~each Representation Date, its opinion, dated as of such date and addressed to the Manager, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described substantially in the ~~Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is~~ form attached hereto as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreement.Exhibit B. (d) The Company shall have requested and caused Tax ~~Counsel~~ Counsel, to furnish to the Manager, on ~~every date specified in Section 4(n) of this Agreement~~each Representation Date, its opinion, dated as of such date and addressed to the Manager, ~~and~~ substantially in the form attached hereto as ~~set forth on~~ Exhibit A.C. (e) The Manager shall have received from ▇▇▇▇▇▇▇ Procter LLP, counsel for the Manager, on each Representation Date, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters. (f) The Company shall have furnished or caused to be furnished to the Manager, on ~~every date specified in Section 4(k) of this Agreement~~each Representation Date, a certificate of the Company, signed by the Chairman of the Board, Chief Executive ~~Officer~~ Officer, President or ~~the President~~ General Counsel, and the principal financial or accounting officer ~~of the Company, on behalf~~ of the Company, dated as of such date, to the effect that the ~~signers~~ signer of such certificate have carefully examined the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the representations and warranties of the Transaction Entities in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Transaction Entities, threatened; and (iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package, there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus. (g) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634), as well as confirming that they have performed a review of any unaudited interim financial information of the Transaction Entities included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards ▇▇. ▇▇▇ (▇▇ ▇▇▇▇). References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letter. (h) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in Section 6(g) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto). (i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b). (j) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. (k) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (l) The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager. (m) Prior to each Settlement Date, the Transaction Entities shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date by the Manager. Notice of such cancellation shall be given to the Company in writing or by facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇▇ Procter LLP, counsel for the Manager, at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on each such date as provided in this Agreement.

Appears in 5 contracts

Sources: Equity Distribution Agreement (Digital Realty Trust, Inc.), Equity Distribution Agreement (Digital Realty Trust, Inc.), Equity Distribution Agreement (Digital Realty Trust, Inc.)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; any ~~other~~ material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The Company shall have requested and caused H▇▇▇▇ Lovells US LLP, counsel to the Company ~~Counsel~~ and the Operating Partnership, to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in ~~the Disclosure Package~~ Annex II-1 and ~~the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free~~ II-2 hereto and ~~clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject~~ to ~~no preemptive rights or options arising under the Delaware General Corporation Law or under~~ such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, further effect as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Datemay reasonably request. (c) The Company shall have requested and caused S▇▇▇ ▇▇▇▇▇ LLP, Maryland ~~Counsel~~ counsel for the Company and the Operating Partnership, to furnish to the Manager, on every date specified in Section ~~4(m~~4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in Annex III hereto and to such further effect as the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects counsel to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case Manager may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreement.reasonably request: (d) The ~~Company~~ Manager shall have ~~requested and caused Tax Counsel to furnish to~~ received from Sidley Austin llp, counsel for the Manager, on every date specified in Section ~~4(n~~4(m) of this Agreement, ~~its opinion~~such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and ~~in form~~ sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as ~~set forth on Exhibit A.~~the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. In giving their opinion, Sidley Austin LLP may rely as to matters involving the laws of the State of Maryland upon the opinion of S▇▇▇ ▇▇▇▇▇ LLP or upon the opinion of counsel satisfactory to the Manager. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chairman of the Board, Chief Executive Officer or the President and the principal financial or accounting officer ~~of the Company, on behalf~~ of the Company, dated as of such date, to the effect that the signers of such certificate have carefully examined the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; (iii) since the date of the most recent financial statements included in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), there has been no Material Adverse Change, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto); and (iv) there is not pending or threatened any action, suit, proceeding, inquiry or investigation, to which the Company, the Operating Partnership or any of their subsidiaries is a party, or to which any of their respective properties or assets is subject, before or brought by any court or governmental agency or body, domestic or foreign, which would reasonably be expected to result in a Material Adverse Change, or which would reasonably be expected to materially and adversely affect the properties or assets thereof or the consummation of the transactions contemplated in this Agreement or the performance by the Company or the Operating Partnership of their obligations under this Agreement. (f) The Operating Partnership shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the chief executive officer and chief financial officer or chief accounting officer of the sole member of Campus Crest Communities GP, LLC, the general partner of the Operating Partnership, confirming that the representations and warranties of the Operating Partnership in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date. (g) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chief Financial Officer of the Company, dated as of such date, in form satisfactory to the Manager. (h) The Company shall have requested and caused KPMG LLC to have furnished to the Manager, on every date specified in Section 4(n) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Disclosure Package or the Prospectus; provided, that the letter delivered on the such date shall use a “cut-off” date no more than three business days prior to the such date. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letter. (i) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (h) of this Section 6 or (ii) any Material Adverse Change, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto). (j) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b). (k) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in or withdrawal of the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. (l) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (m) The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager. (n) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Sidley Austin llp, counsel for the Manager, at 7▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on each such date as provided in this Agreement.

Appears in 4 contracts

Sources: Equity Distribution Agreement (Campus Crest Communities, Inc.), Equity Distribution Agreement (Campus Crest Communities, Inc.), Equity Distribution Agreement (Campus Crest Communities, Inc.)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; any ~~other~~ material required to be filed by the Company pursuant to Rule 433(d) ~~under~~ of the ~~Act,~~ Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The Company shall have requested and caused the Company Counsel to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: ~~1. Based solely on certificates of public officials,~~ (i) ~~each of the~~ The Company has been duly organized and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a ~~corporation,~~ corporation in good standing under the laws of the State of ~~Delaware, with~~ Ohio. (ii) The Company has all requisite corporate power and authority to ~~own or lease~~own, ~~as the case may be,~~ lease and operate its properties and to conduct its business as described in the Disclosure Package and the ~~Prospectus,~~ Prospectus and to enter into and perform its obligations under this Agreement and any applicable Terms Agreement. (iii) The Company is duly qualified to transact business and is in good standing in each jurisdiction in which it owns real property except where the failure to qualify and be ~~so qualified and~~ in good standing would not ~~reasonably be expected to~~ have a material adverse effect on the ~~business~~condition, financial ~~condition~~or otherwise, ~~results of operations~~or on the earnings, ~~management, properties~~ business affairs or business prospects of the Company and its ~~Subsidiaries~~subsidiaries considered as one enterprise. (iv) If the Company has one or more significant subsidiaries, ~~taken~~ as defined in Rule 405 of the Act (each, a “Significant Subsidiary”), each Significant Subsidiary has been duly incorporated or formed and is validly existing as a ~~whole. 3. The issued~~ corporation, partnership, limited liability company or real estate investment trust in good standing or in full force and ~~outstanding shares of capital stock or other ownership interests of each Subsidiary formed~~ effect, as the case may be, under the laws of the ~~State~~ jurisdiction of ~~Delaware~~ its incorporation or formation, has corporate, partnership, limited liability company or real estate investment trust power and authority to own, lease and operate its properties and to conduct its business, and is duly qualified as a foreign corporation, partnership, limited liability company or real estate investment trust to transact business and is in good standing or full force and effect, as the case may be, in each jurisdiction in which it owns real property, except where the failure to so qualify or be in good standing or full force and effect would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise. (v) The number of issued and outstanding capital shares of the Company is as set forth in the Disclosure Package and the Prospectus under “Capitalization,” and the outstanding capital shares of the Company have been duly authorized, validly issued, and are fully paid and non-assessable. The capital shares of the Company conform to the description thereof contained in the Disclosure Package and the Prospectus. All of the issued and outstanding capital stock of the Company's Significant Subsidiaries have been duly authorized and validly ~~issued and~~ issued, are fully paid and non-assessable and, to the best of such counsel's knowledge, except as ~~otherwise set forth~~ disclosed in the Disclosure Package and the Prospectus, are owned by the Company ~~either directly or through wholly-owned subsidiaries~~ free and clear of any security interest, ~~claim,~~ mortgage, pledge, lien, ~~encumbrance~~ encumbrance, claim or equity, except for such security interests, mortgages, pledges, liens, encumbrances, claims or equities that would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise. (vi) Each of this Agreement and any applicable Terms Agreement has been duly authorized, executed and delivered by the Company. (vii) The Shares have been duly and validly authorized by all necessary corporate action and such Shares have been duly authorized for issuance and sale pursuant to this Agreement and any applicable Terms Agreement or any of the Alternative Distribution Agreements and any applicable terms agreement thereunder, as the case may be. Such Shares, when issued and delivered pursuant to this Agreement and any applicable Terms Agreement against payment of the consideration therefor, will be validly issued, fully paid and non-assessable. (viii) The issuance of the Shares will not be subject to any preemptive or other ~~restriction~~ similar rights of any ~~kind, and are subject to no preemptive rights~~ shareholder of the Company arising by operation of law or ~~options arising~~ under the ~~Delaware General Corporation Law~~ charter or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, by-laws of the ~~part of Registration Statement relating~~ Company or, to the ~~Shares for purposes~~ best of ~~the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares~~their knowledge, ~~the Disclosure Package~~ otherwise; and, except as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference set forth in the Disclosure Package and the Prospectus, as no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, capital shares of ~~its respective filing~~ or ~~effective date, appeared on its face to be appropriately responsive~~ ownership interests in the Company are outstanding. (ix) The Shares conform in all material respects to the ~~applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy~~ statements ~~under Regulation 14A, as~~ relating thereto contained in the ~~case may be, under the Exchange Act~~ Disclosure Package and the ~~rules~~ Prospectus; and ~~regulations of~~ the ~~Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or~~ certificates for the ~~financial statements, schedules or other financial data included in, or omitted from, such documents~~Shares are in valid and sufficient form. ~~6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency~~ (x) The Registration Statement is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made effective under the Act ~~(except with respect~~ and, to ~~any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with~~ the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any best of their ~~respective properties or assets may be bound or affected and which have been filed as exhibits to~~ knowledge, no stop order suspending the effectiveness of the Registration Statement ~~or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon~~ has been issued under the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations Act or proceedings ~~pending,~~ therefor initiated or threatened ~~or contemplated to which~~ by the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9Commission. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any Any required filing of the Base Prospectus and the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b)~~; and, based solely on a review of the list of stop orders on the Commission’s website~~ . (~~▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇~~xi) ~~on the date hereof, no stop order suspending the effectiveness of the~~ The Registration Statement and ~~no order directed at any document~~ the Prospectus (other than the documents incorporated by reference therein and the financial statements, related notes and schedules and other financial data and statistical data derived from the financial statements included or incorporated by reference in the Registration Statement or the Prospectus or ~~any amendment~~ omitted therefrom, as to which no opinion need be rendered) as of their respective effective or ~~supplement thereto~~issue dates, ~~has been issued, nor has any proceeding~~ complied as to form in all material respects with the requirements for registration statements on Form S-3 under the ~~purpose been instituted or threatened by~~ Act and the ~~Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance~~rules thereunder. (iixii) ~~In rendering such opinion~~Each document filed pursuant to the Exchange Act (other than the financial statements, ~~such counsel may state that its~~ related schedules and other financial data and statistical data derived from the financial statements included or incorporated by reference therein, as to which no opinion ~~is limited~~ need be rendered) and incorporated or deemed to ~~matters governed~~ be incorporated by reference in the ~~federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California~~ Disclosure Package and the ~~Delaware General Corporation Law. Such counsel shall also have furnished~~ Prospectus complied when so filed as to form in all material respects with the ~~Manager~~Exchange Act. (xiii) To the best of their knowledge, ~~on every date specified~~ there are no legal or governmental proceedings pending or threatened which are required to be disclosed in ~~Section 4(l) of this Agreement~~the Prospectus, ~~a written statement~~other than those disclosed therein, ~~addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager~~and, to the ~~effect~~ best of their knowledge, all pending legal or governmental proceedings to which the Company or its Significant Subsidiaries is a party or of which any of the property of the Company or its subsidiaries is the subject that ~~(x) such counsel has acted as counsel~~ are not described in the Registration Statement, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material to the business of the Company and its subsidiaries considered as one enterprise. (xiv) To the best of their knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Registration Statement or to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto, and the descriptions thereof or references thereto are correct in all material respects. (xv) No authorization, approval or consent of any court or governmental authority or agency is required that has not been obtained in connection with the ~~preparation~~ consummation by the Company of the transactions contemplated by this Agreement or any applicable Terms Agreement, except such as may be required under the Act, the Exchange Act, and state securities laws or blue sky laws or real estate syndication laws; and to the best of their knowledge, the execution and delivery of this Agreement and any applicable Terms Agreement and the consummation of the transactions contemplated herein and therein and compliance by the Company with its obligations hereunder and thereunder will not (A) constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Significant Subsidiary pursuant to, any contract, indenture, mortgage, loan agreement, note, lease or other instrument that is filed or incorporated by reference as an exhibit to the Registration Statement to which the Company or any Significant Subsidiary is a party or by which they are bound or to which any of the property or assets of the Company or any Significant Subsidiary is subject, except (i) where such breach, default, creation or imposition would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise and (ii) that such counsel expresses no opinion with respect to compliance with financial covenants or tests, or (B) result in a violation of the provisions of any administrative or court order or decree to which the Company or any of its subsidiaries is subject and which is known to such counsel, the charter or by-laws or other organizational document of the Company or any Significant Subsidiary or any applicable law or administrative regulation. (xvi) Neither the Company nor any Significant Subsidiary is, or will be immediately after the consummation of the transactions contemplated by this Agreement and any applicable Terms Agreement, required to be registered under the Investment Company Act. (xvii) The information in the Disclosure Package and the Prospectus under the captions “Description of Common Shares,” “Certain Anti-Takeover Provisions” and “Certain Federal Income Tax Considerations,” to the extent that it constitutes matters of law or legal conclusions, has been reviewed by them and is correct in all material respects. (xviii) The Company has qualified as a REIT for each of its taxable years ended December 31, 1993 through its most recently completed taxable year and the Company is organized in conformity with the requirements for qualification as a REIT, and the Company's current and proposed method of operation will enable it to continue to meet the requirements for qualification and taxation as a REIT under the Code for its current taxable year and for future taxable years. (xix) No holders of securities of the Company have rights to the registration of such securities under the Registration Statement. In addition, such counsel shall state that they have examined various documents and records and participated in conferences with officers and other representatives of the Company, representatives of the Accountants and with representatives of the Manager at which the contents of the Registration Statement, the Disclosure Package and the ~~Prospectus~~ Prospectus, and ~~has reviewed~~ any supplements or amendments thereto, and related matters were discussed and, although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package or the Prospectus, including the documents incorporated by reference therein (other than as specified above), and ~~(y) subject to the foregoing, such counsel confirms that~~any supplements or amendments thereto, on the basis of the ~~information gained in the course of performing the services referred to therein~~foregoing, ~~nothing~~ no facts came to ~~such counsel’s~~ their attention that ~~leads such counsel~~ caused them to believe that (i) the Registration ~~Statement~~Statement or any amendments thereto, on as of the most recent deemed effective ~~date,~~ date pursuant to Rule 430B(f)(2) ~~under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11~~ of the Act ~~in connection with~~ prior to the ~~sale~~ delivery of ~~the Shares~~such opinion, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the ~~Prospectus~~Disclosure Package, as ~~of its date, and as of~~ amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained ~~or contains any~~ an untrue statement of a material fact or omitted ~~or omits~~ to state ~~any~~ a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the ~~Disclosure Package~~Prospectus, as ~~amended~~ of its date or ~~supplemented~~ at the ~~Execution Time or at any applicable date related to the delivery of such opinion~~relevant Representation Date, contained ~~any~~ an untrue statement of a material fact or omitted 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; provided~~misleading (in each case, ~~however, such counsel is not passing upon and does not (a) assume any responsibility for~~ other than the ~~accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package~~ Form T-1 and the ~~Prospectus (except as~~ financial statements, related notes and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial data and statistical data derived from the financial statements included or incorporated by reference ~~in,~~ therein or omitted ~~from~~therefrom, ~~the Registration Statement, the Disclosure Package or the Prospectus~~as to which such counsel need express no statement). References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement ~~Date~~Date or Time of Delivery, as applicable. With respect to statements contained in the Disclosure Package, any statement contained in any of the constituent documents shall be deemed to be modified or superseded to the extent that any information contained in subsequent constituent documents modifies or replaces such statement. (c) The ~~Company~~ Manager shall have ~~requested and caused Maryland Counsel to furnish to~~ received from Sidley Austin LLP, counsel for the Manager, on every date specified in Section 4(m) of this Agreement, ~~its opinion~~such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the ~~effect that:~~ issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (itogether with any supplement thereto) ~~The~~ and other related matters as the Manager may reasonably require, and the Company ~~has been duly incorporated and is validly existing~~ shall have furnished to such counsel such documents as ~~a corporation in good standing under~~ they request for the purpose of enabling them to pass upon such matters. In giving their opinions, Sidley Austin llp may rely as to matters involving the laws of the State of ~~Maryland. (ii) The~~ Ohio upon the opinion of Company ~~has the corporate power~~ Counsel, and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms Counsel may rely as to ~~legal~~ matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to involving the laws of the State of ~~Maryland~~New York upon the opinion of Sidley Austin llp. Company Counsel and Sidley Austin llp may rely (i) as to the qualification of the Company or its subsidiaries to do business in any state or jurisdiction, ~~and Maryland Counsel need express no opinion with respect to any federal~~ upon certificates of appropriate government officials, telephonic confirmation by representatives of such states or ~~state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii)~~ confirmation from information contained on the websites of such states and (ixii) ~~above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws~~ as to ~~which Maryland Counsel need express no opinion)~~matters of fact, ~~if any,~~ upon certificates and ~~those approvals, authorizations, consents, orders~~ written statements of officers and employees of and accountants for the Company or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreementits subsidiaries. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chairman of the Board, President and Chief Executive Officer ~~or the President~~ and the principal financial or accounting officer ~~of the Company, on behalf~~ of the Company, dated as of such date, to the effect that the signers of such certificate have carefully examined the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Company has complied

Appears in 4 contracts

Sources: Equity Distribution Agreement (Associated Estates Realty Corp), Equity Distribution Agreement (Associated Estates Realty Corp), Equity Distribution Agreement (Associated Estates Realty Corp)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (i) The Company shall have requested and caused the Company Counsel to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The Company shall have requested and caused Maryland Counsel to furnish to the Manager, on every date specified in Section 4(m) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities.” ~~as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”).~~ The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock~~” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable~~.” (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” ~~as supplemented by the information in Item 5.03 of the Form 8-K,~~ and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, ~~orders~~ orders, registrations, qualifications or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this ~~Equity Distribution~~ Agreement. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chief Executive Officer or the President and the principal financial or accounting officer of the Company, on behalf of the Company, dated as of such date, to the effect that the signers of such certificate have examined the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such

Appears in 4 contracts

Sources: Equity Distribution Agreement (LTC Properties Inc), Equity Distribution Agreement (LTC Properties Inc), Equity Distribution Agreement (LTC Properties Inc)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (i) The Company shall have requested and caused the Company Counsel to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a ~~corporation,~~ corporation ,in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and ~~non-assessable~~ nonassessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The Company shall have requested and caused Maryland Counsel to furnish to the Manager, on every date specified in Section 4(m) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities~~” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K~~”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock”, and under the subheading “Series C” Preferred Stock” stock under the heading “Description of Our Preferred Stock :, as applicable, as supplemented by the information in ~~Item 5.03 of~~ the Form 8-~~K, as applicable.~~K.* (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and ~~non-assessable~~nonassessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. * NTD: The term “Form 8-K” will be defined the ▇▇▇▇▇▇▇ ▇▇▇▇▇ opinion to mean the Company’s Current Report on Form 8-K filed with the SEC on February 12, 2015, which describes the amendment to the Company’s by laws to provide for a majority vote standard for untested elections of directors. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in ~~Item 5.03 of~~ the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreement. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chief Executive Officer or the President and the principal financial or accounting officer of the Company, on behalf of the Company, dated as of such date, to the effect that the signers of such certificate have examined the RegistraChi

Appears in 3 contracts

Sources: Equity Distribution Agreement (LTC Properties Inc), Equity Distribution Agreement (LTC Properties Inc), Equity Distribution Agreement (LTC Properties Inc)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 3(a)(ix) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The Company shall have requested and caused the Company ~~Counsel~~ Counsel, to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its ~~opinion~~written opinions, substantially similar to the form attached hereto as Exhibit 6(b)(i) and Exhibit 6(b)(ii), dated as of such date and addressed to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to (c) The Manager shall have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/received from Hunton & ▇▇▇▇▇▇▇~~▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof~~▇ LLP, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding counsel for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The Company shall have requested and caused Maryland Counsel to furnish to the Manager, on every date specified in Section 4(m) of this Agreement, ~~its opinion~~such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the ~~Shares by~~ Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company ~~and consummation~~ shall have furnished to such counsel such documents as they request for the purpose of ~~the transactions contemplated by this Agreement, other than~~ enabling them to pass upon such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreementmatters. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chairman of the Board, the Chief Executive ~~Officer~~ Officer, the President or the ~~President~~ Executive Vice President, General Counsel and Secretary and the principal financial or accounting officer of the Company, ~~on behalf~~ or such other executive officers of the ~~Company~~Company reasonably acceptable to the Manager, dated as of such date, to the effect that the signers of such certificate have carefully examined the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (iii) since the date of the most recent financial statements included in or incorporated by reference into the Registration Statement and the Disclosure Package there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement and the Disclosure Package. (e) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(n) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance reasonably satisfactory to the Manager, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of any unaudited interim financial information of the Company included or incorporated by reference in the Registration Statement and the Prospectus in accordance with Statement on Auditing Standards No. 100, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included or incorporated by reference in the Registration Statement and the Prospectus and reported on by them comply as to form with the applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted by the Commission; (ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and its subsidiaries; their limited review, in accordance with standards established under Statement on Auditing Standards No. 100, of the unaudited interim financial information included or incorporated by reference in the Registration Statement and the Prospectus; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and the audit committee of the Company and the subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to the date of the most recent audited financial statements included or incorporated by reference in the Registration Statement and the Prospectus, nothing came to their attention which caused them to believe that: (1) any unaudited financial statements included or incorporated by reference in the Registration Statement and the Prospectus do not comply as to form with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or incorporated by reference in Quarterly Reports on Form 10-Q under the Exchange Act; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by reference in the Registration Statement and the Prospectus; (2) with respect to the period subsequent to the date of the most recent financial statements (other than any capsule information), audited or unaudited, included or incorporated by reference in the Registration Statement and the Prospectus, there were any changes, at a specified date not more than five days prior to the date of the letter, in the capital stock and consolidated debt of the Company or decreases in the stockholders’ equity of the Company as compared with the amounts shown on the consolidated balance sheet dated as of the most recent financial statements included or incorporated by reference in the Registration Statement and the Prospectus included or incorporated by reference in the Registration Statement and the Prospectus, or for the period from such date to such specified date there were any decreases, as compared with the appropriate comparative period in consolidated revenues or in total or per share amounts of consolidated earnings of the Company before extraordinary items or of consolidate earnings except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Manager; (3) the information included or incorporated by reference in the Registration Statement and the Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data) and Item 503(d) (Ratio of Earnings to Fixed Charges) is not in conformity with the applicable disclosure requirements of Regulation S-K; and (4) To the extent capsule financial information is included or incorporated by reference in the Registration Statement and the Prospectus, the unaudited capsule information does not agree with the amounts set forth in the unaudited financial statements for the same periods or were not determined on a basis substantially consistent with that of the corresponding amounts in the audited financial statements included or incorporated by reference in the Registration Statement and the Prospectus; and (iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth or incorporated by reference in the Registration Statement and the Prospectus and in Exhibit 12 to the Registration Statement agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Since the respective dates as of which information is disclosed in the Registration Statement and the Disclosure Package, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Disclosure Package (exclusive of any amendment or supplement thereto). (g) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b). (h) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. (i) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (j) The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager. (k) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Hunton & ▇▇▇▇▇▇▇▇ LLP, counsel for the Manager, at Bank of America Plaza, Suite 4100, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attn: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, on each such date as provided in this Agreement.

Appears in 3 contracts

Sources: Equity Distribution Agreement (National Retail Properties, Inc.), Equity Distribution Agreement (National Retail Properties, Inc.), Equity Distribution Agreement (National Retail Properties, Inc.)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The Company shall have requested and caused the Company Counsel to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: 1. (i) Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) ~~Texas-~~LTC Limited Partnership is in good standing in the State of Texas. 2. (ii) Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, limited liability company or limited partnership, as the case may be, in good standing under the laws of the State of Delaware, with ~~corporate~~ corporate, limited liability company or limited partnership power and ~~authority~~ authority, as applicable, to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. (iii) The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and ~~non-assessable~~ nonassessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. (iv) The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, ~~excluding documents incorporated or deemed to be incorporated by reference and~~ except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. (v) Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. (vi) No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement and any Terms Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. (vii) The execution and delivery by the Company of this Agreement and any Terms Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement and any Terms Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. (viii) To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. (ix) The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. ~~10.~~ (x) The statements included or incorporated by reference in the Registration Statement and the Prospectus under the captions “Risk Factors—Congress and the States Have Enacted Health Care Reform and Budget Measures”, “Business—Government Regulation” and “Business—Legislative Developments” insofar as such statements constitute a summary of the legal matters referred to therein, constitute accurate summaries or descriptions thereof in all material respects. (xi) The Registration Statement ~~became~~ has been declared effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely ~~on a review~~ upon oral telephonic advice from one or more members of ~~the list of stop orders on~~ the Commission’s ~~website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof~~staff, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. ~~11.~~ (xii) The Shares have been approved for listing by the NYSE subject to official notice of issuance~~. (ii)~~ . In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The Company shall have requested and caused Maryland Counsel to furnish to the Manager, on every date specified in Section 4(m) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement and any applicable Terms Agreement. (iii) The authorized capital stock of the Company is as set forth in the ~~Disclosure Package and the~~ Prospectus in the third full paragraph under the caption “General Description of the Offered Securities~~” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K~~”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock~~” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable~~”. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when ~~Shares are~~ issued, delivered and paid for as contemplated ~~by the Directors’ Resolutions~~ in this Agreement and ~~this~~ any applicable Terms Agreement, ~~such~~ the Shares will be validly issued, fully paid and ~~non-assessable~~nonassessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement and any applicable Terms Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement ~~has~~ and any applicable Terms Agreement have been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “Risk Factors—Certain provisions of Maryland law and our Charter and Bylaws could hinder, delay or prevent changes in control,” “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” ~~as supplemented by the information in Item 5.03 of the Form 8-K,~~ and (b) Item 15 “Indemnification of ~~Officers~~ Directors and ~~Directors~~Officers” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement and any Terms Agreement, other than such as have been obtained or made~~, as the case may be~~. (ix) The execution, delivery and performance of this Agreement and any applicable Terms Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreement. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chief Executive Officer or the President and the principal financial or accounting officer of the Company, on behalf of the Company, dated as of such date, to the effect that the signers of such certificate have examined the RegistraSecti

Appears in 3 contracts

Sources: Equity Distribution Agreement (LTC Properties Inc), Equity Distribution Agreement (LTC Properties Inc), Equity Distribution Agreement (LTC Properties Inc)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties ~~on the part~~ of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of ~~Delivery~~Delivery (except to the extent such representations and warranties expressly relate to a specific earlier date (in which case such representations and warranties shall be true and correct as of such specified earlier date)), (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement ~~thereto,~~ thereto required by Rule 424 to be filed with the ~~Commission~~ Commission, have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The Company shall have requested and caused the Company ~~Counsel~~ Counsel, to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents.Annex B. 4. (c) The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as shall have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (received from ▇▇▇.▇▇▇., ▇▇▇/▇ & ▇▇▇▇▇▇▇~~▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof~~▇ LLP, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding counsel for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The Company shall have requested and caused Maryland Counsel to furnish to the Manager, on every date specified in Section 4(m) of this Agreement, ~~its opinion~~such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the ~~Shares by~~ Shares, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company ~~and consummation~~ shall have furnished to such counsel such documents as they request for the purpose of ~~the transactions contemplated by this Agreement, other than~~ enabling them to pass upon such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreementmatters. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chief Executive Officer or the President and the principal financial or accounting officer of the Company, ~~on behalf of the Company,~~ dated as of such date, to the effect that the signers of such certificate have carefully examined the ~~Registra~~Registration Statement and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date (except to the extent such representations and warranties expressly relate to a specific earlier date (in which case such representations and warranties shall be true and correct as of such specified earlier date)) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (iii) since the date of the most recent financial statements included or incorporated by reference in the Registration Statement and the Prospectus, there has been no Material Adverse Effect except as set forth in or contemplated in the Registration Statement and the Prospectus. (e) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(n) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters, dated as of such date, in form and substance satisfactory to the Manager, substantially in the form of Annex C hereto, and confirming that they are independent accountants within the meaning of the Securities Act, the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of any unaudited interim financial information of the Company included or incorporated by reference in the Registration Statement and the Prospectus in accordance with Statement on Auditing Standards No. 100. (f) Subsequent to the respective dates as of which information is disclosed in the Registration Statement and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any Material Adverse Effect, except as set forth in or contemplated in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof)and the Prospectus (exclusive of any amendment or supplement thereto). (g) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. (h) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. (i) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (j) The Shares shall have been listed and admitted and authorized for trading on Nasdaq, and satisfactory evidence of such actions shall have been provided to the Manager. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be cancelled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Manager, at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, #1200, Irvine, California 92612, on each such date as provided in this Agreement.

Appears in 2 contracts

Sources: Equity Distribution Agreement (Clean Energy Fuels Corp.), Equity Distribution Agreement (Clean Energy Fuels Corp.)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company and the Partnership contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 3(a)(viii) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.. 32 (ib) The Company shall have requested and caused the Company ~~Counsel~~ Counsel, to furnish to the Manager, on every date specified in Section ~~4(l~~4(k) of this Agreement, ~~its opinion, dated as~~ an opinion of ~~such date and~~ Company Counsel addressed to the ~~Manager, to~~ Manager in the ~~effect that: 1. Based solely on certificates~~ form of ~~public officials, (i) each of the Company~~ Exhibits A-1 and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may beA-2, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/letter from Hunton & ▇▇▇▇▇▇▇~~▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof~~▇ LLP, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished addressed to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the ~~course~~ form of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement DateExhibit A-3. (c) The Company shall have requested and caused ~~Maryland Counsel~~ Senior Corporate Counsel, to furnish to the Manager, on every date specified in Section ~~4(m~~4(k) of this Agreement, ~~its opinion, dated as~~ an opinion of ~~such date and~~ Senior Corporate Counsel addressed to the Manager, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described Manager in the ~~Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock~~ form of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreement.Exhibit B (d) The Company shall have requested and caused ~~Tax Counsel~~ Senior Corporate Counsel, to furnish to the Manager, on every date specified in Section ~~4(n~~4(k) of this Agreement, ~~its opinion~~an opinion of Maryland Counsel addressed to the Manager in the form of Exhibit C. (e) The Manager shall have received on every date specified in Section 4(k) of this Agreement, the favorable opinion of ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Managers, dated as of such date and addressed to the Manager~~, and in form as set forth on Exhibit A.~~. (ef) The Company and the Partnership shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this ~~Agreement~~Agreement a certificate of its Chief Financial Officer and its Chief Accounting Officer, in the case of the Company, and of its general partner, in the case of the Partnership, in the form attached as Exhibit D hereto. The Managers shall have received from the Company and the Partnership on every date specified in Section 4(k), a certificate of its Chief Financial Officer and its Chief Accounting Officer, in the ~~Company, signed by the Chief Executive Officer or the President and the principal financial or accounting officer~~ case of the Company, and its general partner, in the case of the Partnership, in the form attached as Exhibit E hereto (g) The Company shall have requested and caused the Accountants to have furnished to the Manager, on ~~behalf~~ every date specified in Section 4(n) hereof and to the extent requested by the Manager in connection with any offering of the Shares, a comfort letter addressed to the Managers in the form and substance satisfactory to the Managers. (h) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall have been no material adverse change or any development reasonably expected to result in a material adverse change in the business, properties, management, financial condition or results of operations of the Company, ~~dated~~ the Partnership and the Subsidiaries taken as a whole shall occur or become known the effect of which, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto). (i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of 33 Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post‑effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b). (j) No Prospectus or amendment or supplement to the Registration Statement or the Prospectus shall have been filed to which the Manager objects in writing (k) Between the Execution Time and the time of any sale of Shares through the Manager, (i) no stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings initiated under Section 8(d) or 8(e) of the Securities Act; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) the Prospectus and amendments or supplements thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (v) none of the Issuer Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading. (l) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (m) The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such ~~date,~~ actions shall have been provided to the ~~effect that~~ Manager. (n) The Articles Supplementary shall have been accepted for record by the ~~signers~~ MSDAT and shall be effective under the Maryland REIT Law. (o) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such ~~certificate have examined~~ cancellation shall be given to the ~~Registra~~Company in writing or by telephone or facsimile confirmed in writing. 34 The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Manager, at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on each such date as provided in this Agreement.

Appears in 2 contracts

Sources: Equity Distribution Agreement (Hersha Hospitality Trust), Equity Distribution Agreement (Hersha Hospitality Trust)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be ~~subject~~ subject, in their discretion, to ~~(i)~~ the ~~accuracy of the~~ condition that all representations and warranties ~~on the part~~ and other statements of the Company ~~contained~~ herein are, at and as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, true and correct (~~ii)~~ except to the ~~performance by~~ extent such representations and warranties expressly related to a specific earlier date, in which case such representations and warranties shall be true and correct as of such specified earlier date), the condition that the Company shall have performed all of its obligations hereunder theretofore to be performed, and ~~(iii)~~ the following additional conditions: (a) The ~~Prospectus, and any supplement thereto, required by Rule 424 to be~~ Prospectus shall have been filed with the Commission pursuant to Rule 424(b) under the Act within the applicable time period prescribed for such filing by the rules and regulations under the Act and in accordance with Section 4(a) hereof; each Interim Prospectus Supplement, if any, shall have been filed in the manner ~~and~~ required by Rule 424(b) within the time period required by ~~Rule 424(b)~~Section 4(q) of this Agreement; ~~any other~~ all material required to be filed by the Company pursuant to Rule 433(d) under the ~~Act,~~ Act shall have been filed with the Commission within the applicable time ~~periods~~ period prescribed for such filings by Rule 433; ~~and~~ no stop order suspending the effectiveness of the Registration Statement or any ~~notice objecting to its use~~ part thereof shall have been issued and no ~~proceedings~~ proceeding for that purpose or pursuant to Section 8A of the Act shall have been ~~instituted~~ initiated or, to the knowledge of the Company, threatened by the Commission and no notice of objection of the Commission to the use of the Registration Statement or ~~threatened.~~any post-effective amendment thereto pursuant to Rule 401(g)(2) under the Act shall have been received; no stop order suspending or preventing the use of the Prospectus or any Issuer Free Writing Prospectus shall have been initiated or, to the knowledge of the Company, threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction; (b) ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Manager, shall have furnished to you, on every date specified in Section 4(m) of this Agreement such written opinion or opinions, dated as of such date, in form and substance satisfactory to you and such counsel shall have received such papers and information as they may reasonably request to enable them to pass upon such matters (i) ~~The Company~~ O’Melveny & ▇▇▇▇▇ LLP, counsel for the Company, shall have ~~requested and caused the Company Counsel~~ furnished to ~~furnish to the Manager~~you, on every date specified in Section 4(l) of this Agreement, ~~its~~ such written opinion, dated as of such ~~date~~ date, addressing the content included in Annex B hereto, in form and ~~addressed~~ substance reasonably satisfactory to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A you; and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (J. ▇▇▇.▇▇~~▇.▇▇▇/~~▇ ▇▇▇▇▇▇~~▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof~~, ~~no stop order suspending the effectiveness~~ Senior Vice President, Co-Head Renewable Fuels and Chief Legal Officer of the ~~Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto~~Company, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall ~~also~~ have furnished to ~~the Manager~~you, on every date specified in Section 4(l~~) of this Agreement~~), a such written ~~statement~~opinion, ~~addressed to the Manager and~~ dated as of such date, addressing the content included in Annex C hereto, in form and substance reasonably satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The Company shall have requested and caused Maryland Counsel to furnish to the Manager, on every date specified in Section 4(m) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreement.you; (d) The Company shall cause KPMG LLP, or other independent accountants for the Company appointed by the Audit Committee of the Board of Directors of the Company, shall have ~~requested and caused Tax Counsel~~ furnished to ~~furnish to the Manager~~you, on every date specified in Section 4(n) of this Agreement, ~~its opinion~~a letter or letters, dated as of such ~~date~~ date, in form and ~~addressed~~ substance reasonably satisfactory to you, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the ~~Manager~~financial statements and certain financial information contained or incorporated by reference in the Registration Statement and the Prospectus; (e) On or after each Applicable Time, there shall not have been (i) any change in the capital stock or long term debt of the Company or any of its subsidiaries or (ii) any change or effect in or affecting (x) the business, properties, general affairs, management, financial position, stockholders' equity or results of operations of the Company and ~~in form~~ its subsidiaries, taken as a whole, except as set forth or contemplated in the Prospectus, or (y) the ability of the Company to perform its obligations under this Agreement, including the issuance and sale of the Shares, or to consummate the transactions contemplated in the Prospectus, the effect of which, in any such case described in clause (i) or (ii), is in your judgment so material and adverse as to make it impracticable or inadvisable to proceed with the public offering or the delivery of the Shares being delivered at such Time of Delivery on ~~Exhibit A.~~the terms and in the manner contemplated in the Prospectus; (ef) the Financial Industry Regulatory Authority (“FINRA”) shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement; (g) On or after each Applicable Time, there shall not have occurred any of the events described in Section 8(e)(i) through (v) of this Agreement. (h) The Company shall have complied with the provisions of Section 4(f) hereof with respect to the furnishing of prospectuses on the New York Business Day next succeeding the date of this Agreement; (i) [Reserved.] (j) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the ~~Chief Executive Officer~~ chief executive officer or the President of the Company, and of the ~~principal~~ chief financial or chief accounting officer of the ~~Company, on behalf~~ Company (or such other officer(s) of the ~~Company~~Company as shall be agreed to by the Manager in connection with the delivery of the certificate), dated as of such date, to the effect that the signers of such certificate have carefully examined the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the Company has received no stop order suspending the effectiveness of the Registration Statement, and no proceedings for such purpose or pursuant to Section 8A of the Act have been instituted or, to the Company’s knowledge, threatened by the Commission; (ii) since the date of the most recent financial statements included in the Prospectus and the Disclosure Package, there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus; (iii) the representations and warranties set forth in Section 2 of this Agreement (A) to the extent such representations and warranties are subject to qualifications and exceptions contained therein related to materiality or a Material Adverse Effect, are true and correct with the same force and effect as though expressly made on and as of such date (except to the extent such representations and warranties expressly related to a specific earlier date, in which case such representations and warranties shall be true and correct as of such specified earlier date), and (B) to the extent such representations and warranties are not subject to any qualifications or exceptions relating to materiality or a Material Adverse Effect, are true and correct in all material respects as those expressly made on and as of such date; and (iv) the Company and its subsidiaries have complied with all the agreements hereunder and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such date.

Appears in 2 contracts

Sources: Equity Distribution Agreement (Clean Energy Fuels Corp.), Equity Distribution Agreement (Clean Energy Fuels Corp.)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(x) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The ~~Company~~ Manager shall have ~~requested and caused~~ received the opinions of Company Counsel to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section ~~6(d~~4(l) ~~with respect~~ on or before the date on which such delivery of such opinions are required pursuant to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement DateSection 4(l). (c) The ~~Company~~ Manager shall have ~~requested and caused Maryland~~ received the opinion of IP Counsel or officer’s certificate required to ~~furnish~~ be delivered pursuant to ~~the Manager, on every date specified in~~ Section 4(m) ~~of this Agreement, its opinion, dated as~~ on or before each date on which such delivery of such ~~date and addressed to the Manager, to the effect that: (i) The Company has been duly incorporated and~~ opinion or officer’s certificate is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland required pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (viiSection 4(m), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreement. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer ~~or the President~~ and the principal financial or accounting officer ~~of the Company, on behalf~~ of the Company, dated as of such date, to the effect that the signers of such certificate have carefully examined the ~~Registra~~Registration Statement and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (iii) since the date of the most recent financial statements included in the Prospectus, there has been no material adverse effect on the condition (financial or otherwise), business prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus. (e) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(n) hereof, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance reasonably satisfactory to the Manager, substantially in the form previously provided to the Manager, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of any unaudited interim financial information of the Company included or incorporated by reference in the Registration Statement and the Prospectus in accordance with Statement on Auditing Standards No. 100. (f) Since the respective dates as of which information is disclosed in the Registration Statement and the Prospectus, except as otherwise stated therein, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any amendment or supplement thereto) the effect of which is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto). (g) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. (h) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (i) The Shares shall have been listed and admitted and authorized for trading on Nasdaq, and satisfactory evidence of such actions shall have been provided to the Manager. (j) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Manager, at ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on each such date as provided in this Agreement.

Appears in 2 contracts

Sources: Equity Distribution Agreement, Equity Distribution Agreement (Arena Pharmaceuticals Inc)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement with respect to a Placement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable ~~Time, Settlement Date~~ Time and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) ~~The Prospectus, and any~~ Any supplement ~~thereto,~~ to the Prospectus required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The Company shall have requested and caused ~~the~~ Company ~~Counsel~~ Counsel, to furnish to the Manager, on ~~every date~~ the dates specified in Section ~~4(l~~4(l)(i) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance reasonably satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The Company shall have requested and caused ~~Maryland Counsel~~ Company IP Counsel, intellectual property counsel for the Company, to furnish to the Manager, on ~~every date~~ the dates specified in Section ~~4(m~~4(l)(ii) of this Agreement, its opinion, dated as of such date and addressed to the Manager, in form and substance reasonably satisfactory to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution AgreementManager. (d) The ~~Company~~ Manager shall have ~~requested and caused Tax~~ received from ▇▇▇▇▇▇ LLP, counsel for the Manager on each date which the delivery of the Company Counsel legal opinion is required pursuant to ~~furnish to the Manager, on every date specified in~~ Section ~~4(n~~4(l)(i) of this Agreement, ~~its opinion~~such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and ~~in form~~ sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as ~~set forth on Exhibit A.~~the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (e) The Company shall have furnished or caused to be furnished to the Manager, on ~~every date~~ the dates specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chairman of the Board, the President, the Chief Executive Officer or the ~~President and the~~ principal financial or principal accounting officer ~~of the Company, on behalf~~ of the Company, dated as of such date, to the effect that the ~~signers~~ signer of such certificate ~~have~~ has carefully examined the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (iii) since the date of the most recent financial statements included in the Disclosure Package, there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus. (f) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(m) hereof, the Comfort Letter that is required to be delivered pursuant to Section 4(m) hereof (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance reasonably satisfactory to the Manager. (g) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease in financial statement items specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth or contemplated in the Disclosure Package, the effect of which is, in any case referred to in clause (i) or (ii) above, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to market the Shares on the terms and in the manner contemplated in the Disclosure Package and the Prospectus. (h) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus or prospectus supplement filed pursuant to Rule 424(b). (i) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. (j) If applicable, FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (k) The Shares shall have been listed and admitted and authorized for trading on the Nasdaq Global Select Market, and satisfactory evidence of such actions shall have been provided to the Manager. (l) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or electronic mail and confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇ LLP, counsel for the Manager, at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, New York, New York 10001-2157, on each such date as provided in this Agreement.

Appears in 2 contracts

Sources: Sales Agreement (Apellis Pharmaceuticals, Inc.), Open Market Sale Agreement (Apellis Pharmaceuticals, Inc.)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The Company shall have requested and caused the Company ~~Counsel~~ Counsel, to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its ~~opinion~~opinion and negative assurance letter, in form and substance reasonably satisfactory to the Manager, dated as of such date and addressed to the Manager~~, to the effect that: 1~~. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may ~~state that its opinion is limited~~ rely (A) as to matters ~~governed by~~ involving the ~~federal~~ application of laws of any jurisdiction other than the States of California, Delaware or New York, or the Federal laws of the United ~~States of America~~States, ~~the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished~~ to the ~~Manager, on every date~~ extent they deem proper and specified in ~~Section 4(l)~~ such opinion, upon the opinion of ~~this Agreement, a written statement, addressed~~ other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Manager and ~~dated~~ (B) as to matters of ~~such date, in form and substance satisfactory to the Manager~~fact, to the ~~effect that (x) such counsel has acted as counsel to~~ extent they deem proper, on certificates of responsible officers of the Company ~~in connection with the preparation of the Registration Statement, the Disclosure Package~~ and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectuspublic officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The ~~Company~~ Manager shall have ~~requested and caused Maryland Counsel to furnish to~~ received from ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Manager, on every date specified in Section 4(m) of this Agreement, ~~its opinion~~such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the ~~Shares by~~ Shares, the Registration Statement and the Disclosure Package and other related matters as the Manager may reasonably require, and the Company ~~and consummation~~ shall have furnished to such counsel such documents as they request for the purpose of ~~the transactions contemplated by this Agreement, other than~~ enabling them to pass upon such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreementmatters. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, (A) a certificate of the Company, signed by ~~the Chief Executive Officer or the President and the principal financial or accounting~~ an executive officer ~~of the Company, on behalf~~ of the Company, dated as of such date, to the effect that the signers of such certificate have carefully examined the ~~Registra~~Registration Statement and the Disclosure Package and any supplements or amendments thereto and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (iii) since the date of the most recent financial statements included in the Disclosure Package, there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement and the Disclosure Package; and

Appears in 2 contracts

Sources: Equity Distribution Agreement (Roku, Inc), Equity Distribution Agreement (Roku, Inc)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the ~~Company~~ Transaction Entities contained herein as of the Execution Time, each Representation Date, and as of each Applicable ~~Time,~~ Time and Settlement ~~Date and Time of Delivery~~Date, (ii) to the performance by each of the ~~Company~~ Transaction Entities of its obligations ~~hereunder~~ hereunder, (iii) to the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (~~iii~~iv) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b); each Interim Prospectus Supplement, if any, shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(aa) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The Company shall have requested and caused the Company Counsel to furnish to the Manager, on ~~every date specified in Section 4(l) of this Agreement~~each Representation Date, its opinion, dated as of such date and addressed to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described substantially in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken form attached hereto as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation LawExhibit A-1. Such counsel shall also have furnished to the Manager, on ~~every date specified in Section 4(l) of this Agreement~~each Representation Date, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained substantially in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, form attached hereto as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement DateExhibit A-2. (c) The Company shall have requested and caused Maryland ~~Counsel~~ Counsel, to furnish to the Manager, on ~~every date specified in Section 4(m) of this Agreement~~each Representation Date, its opinion, dated as of such date and addressed to the Manager, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described substantially in the ~~Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is~~ form attached hereto as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreement.Exhibit B. (d) The Company shall have requested and caused Tax ~~Counsel~~ Counsel, to furnish to the Manager, on ~~every date specified in Section 4(n) of this Agreement~~each Representation Date, its opinion, dated as of such date and addressed to the Manager, ~~and~~ substantially in the form attached hereto as ~~set forth on~~ Exhibit A.C. (e) The Manager shall have received from ▇▇▇▇▇▇▇ Procter LLP, counsel for the Manager, on each Representation Date, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters. (f) The Company shall have furnished or caused to be furnished to the Manager, on ~~every date specified in Section 4(k) of this Agreement~~each Representation Date, a certificate of the Company, signed by the Chairman of the Board, Chief Executive ~~Officer~~ Officer, President or ~~the President~~ General Counsel and the principal financial or accounting officer ~~of the Company, on behalf~~ of the Company, dated as of such date, to the effect that the ~~signers~~ signer of such certificate have carefully examined the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the representations and warranties of the Transaction Entities in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Transaction Entities, threatened; and (iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package, there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus. (g) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634), as well as confirming that they have performed a review of any unaudited interim financial information of the Transaction Entities included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards ▇▇. ▇▇▇ (▇▇ ▇▇▇▇). References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letter. (h) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in Section 6(g) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto). (i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b). (j) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. (k) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (l) The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager. (m) Prior to each Settlement Date, the Transaction Entities shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date by the Manager. Notice of such cancellation shall be given to the Company in writing or by facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇▇ Procter LLP, counsel for the Manager, at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on each such date as provided in this Agreement.

Appears in 2 contracts

Sources: Equity Distribution Agreement (Digital Realty Trust, Inc.), Equity Distribution Agreement (Digital Realty Trust, Inc.)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the ~~Company~~ MarkWest Parties and the Selling Unitholder contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the ~~Company~~ MarkWest Parties and the Selling Unitholder of ~~its~~ their obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Units; any ~~other~~ material required to be filed by the ~~Company~~ Partnership pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The ~~Company~~ Partnership shall have requested and caused ~~the Company~~ Partnership Counsel to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: ~~1. Based solely on certificates of public officials,~~ (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became has become effective under the Act; any required filing of the Base Prospectus and the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); ~~and, based solely on a review~~ to the knowledge of ~~the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof~~such counsel, no stop order suspending the effectiveness of the Registration Statement ~~and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus~~ or any ~~amendment or supplement thereto,~~ notice objecting to its use has been issued, ~~nor has any proceeding~~ no proceedings for ~~the~~ that purpose have been instituted or ~~threatened by~~ threatened, and the ~~Commission. 11. The Shares have been approved for listing by~~ Registration Statement and the ~~NYSE subject~~ Prospectus (other than the financial statements and other financial and statistical information contained therein, as to ~~official notice of issuance. (ii) In rendering such opinion,~~ which such counsel ~~may state that its opinion is limited~~ need express no opinion) comply as to ~~matters governed by~~ form in all material respects with the ~~federal laws~~ applicable requirements of the ~~United States of America, the internal laws of the State of New York, the internal laws of the State of California~~ Act and the ~~Delaware General Corporation Law. Such counsel shall also have furnished to~~ Exchange Act and the ~~Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager~~ respective rules thereunder; and ~~dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x)~~ such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel no reason to believe that ~~(i) the Registration Statement,~~ on the ~~effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of~~ Effective Date the Registration Statement ~~relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares,~~ contained an any untrue statement of a material fact or omitted to state a any material fact required to be stated therein or necessary to make the statements therein not ~~misleading; (ii)~~ misleading or that the ~~Prospectus,~~ Prospectus as of its ~~date,~~ date and ~~as of~~ on the ~~date of such opinion, contained~~ Closing Date included or ~~contains~~ includes any untrue statement of a material fact or omitted or omits to state ~~any~~ a material fact necessary ~~in order~~ to make the statements therein, in the light of the circumstances under which they were made, not ~~misleading; or~~ misleading (~~iii~~in each case, other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion); (ii) such counsel has no reason to believe that the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not ~~misleading; provided~~misleading (other than the financial statements and other financial information contained therein, ~~however,~~ as to which such counsel need express no opinion); (iii) the Partnership has been duly formed and is ~~not passing upon~~ validly existing in good standing as a limited partnership under the Delaware LP Act with all necessary partnership power and ~~does not (a) assume any responsibility for the accuracy, completeness~~ authority to own or ~~fairness of the statements contained~~ lease its properties and to conduct its business in all material respects as described in the Registration Statement, the Disclosure Package and the ~~Prospectus~~ Prospectus. The Partnership is duly registered or qualified as a foreign limited partnership for the transaction of business under the laws of all applicable jurisdictions; (~~except~~ iv) each of MarkWest Hydrocarbon, MarkWest Energy GP, the Operating Company, the Subsidiaries of the Partnership organized in Texas and the Subsidiaries of the Partnership organized in Delaware has been duly formed and is validly existing in good standing as a corporation or limited liability company under the DGCL, the Delaware LLC Act, and the TBOC, as applicable, with all necessary corporate or limited liability company power, as applicable, and authority to own or lease its properties and to ~~the extent set forth~~ conduct its business in ~~such opinion and~~ all material respects as described in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or and the Prospectus. ~~References to~~ Each such entity is duly registered or qualified as a foreign corporation or limited liability company, as applicable, for the ~~Prospectus in this paragraph (b) shall also include any supplements thereto at~~ transaction of business under the ~~Settlement Date.~~laws of all applicable jurisdictions; (cv) ~~The Company shall have requested~~ MarkWest Energy GP is the sole general partner of the Partnership with all necessary limited liability company power and ~~caused Maryland Counsel~~ authority to ~~furnish to~~ act as the ~~Manager, on every date specified in Section 4(m)~~ general partner of ~~this Agreement, its opinion, dated as of such date and addressed to~~ the ~~Manager, to the effect that:~~Partnership; (ivi) ~~The Company~~ Bright Star has been duly ~~incorporated~~ formed and is validly existing as a ~~corporation in good standing~~ general partnership under the laws of the State of ~~Maryland. (ii) The Company has the corporate~~ Texas with all necessary partnership power and authority to own or lease its ~~properties,~~ properties and to conduct its business in all material respects as described in the Registration Statement, the Disclosure Package and the ~~Prospectus and to enter into and perform its obligations under this Agreement.~~Prospectus; (~~iii~~vii) ~~The~~ all outstanding Common Units and Class A Units and the limited partner interests represented thereby have been duly authorized ~~capital stock~~ and validly issued in accordance with the Partnership Agreement, and are fully paid (to the extent required under the Partnership Agreement) and nonassessable (except as such nonassessability may be affected by Sections 17-607 and 17-804 of the ~~Company~~ Delaware LP Act); (viii) the Partnership’s authorized equity capitalization is as set forth in the Disclosure Package and the ~~Prospectus in~~ Prospectus; the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the ~~Company~~ Partnership conforms ~~as to legal matters in all material respects~~ to the description thereof contained in the Disclosure Package and the ~~Prospectus under~~ Prospectus; the ~~captions “General Description of the Offered Securities” and “Description of Our~~ outstanding Common ~~Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares~~ Units have been duly and validly authorized ~~by all necessary corporate action on~~ and issued and are fully paid and nonassessable; the ~~part of the Company under its charter~~ Units have been duly and ~~bylaws~~ validly authorized, and, when issued and ~~the Maryland General Corporation Law, and when Shares are issued,~~ delivered to and paid for ~~as contemplated~~ by the ~~Directors’ Resolutions~~ Manager pursuant to this Agreement and ~~this~~ any Terms Agreement, ~~such Shares~~ will be ~~validly issued,~~ fully paid and ~~non-assessable. The~~ nonassessable; the Units are duly listed, and admitted and authorized for trading, subject to official notice of issuance, on the NYSE; the certificates for the Units are in valid and sufficient form; the holders of outstanding ~~shares of capital stock~~ Common Units of the ~~Company~~ Partnership are not entitled to preemptive or other rights to subscribe for the ~~Shares arising under~~ Common Units; and, except as set forth in the ~~Maryland General Corporation Law~~ Disclosure Package and the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, Common Units or ownership interests in the ~~charter or bylaws~~ Partnership are outstanding; (ix) the issued and outstanding membership interests, general partner interests and capital stock, as applicable, of each of MarkWest Energy GP, the Operating Company, the Subsidiaries of the ~~Company. (v) The specimen stock certificate used to evidence~~ Partnership organized in Texas, the ~~Shares complies with the applicable requirements~~ Subsidiaries of the ~~Maryland General Corporation Law~~ Partnership organized in Delaware, MarkWest Hydrocarbon and ~~with any applicable requirements of the charter or bylaws of the Company.~~ Bright Star (vii) ~~The execution and delivery of this Agreement~~ have been duly authorized and validly issued in accordance with its Constituent Documents, (ii) are fully paid (to the extent required under the Constituent Agreements) and (iii) are non-assessable (except as such nonassessability may be affected by ~~all necessary corporate action on the part~~ Sections 17-607 and 17-804 of the ~~Company~~ Delaware LP Act, Sections 18-607 and 18-804 of the Delaware LLC Act or Section 101.206 of the TBOC); (x) the Partnership directly or indirectly owns the general partner interests, membership interests and capital stock, as applicable, in the Subsidiaries in all material respects as described in the Disclosure Package and in the Prospectus, free and clear of all Liens (except Liens created by or arising under ~~its charter~~ the Credit Agreement, the DGCL or the Delaware LLC Act) (A) in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming the Partnership, MarkWest Hydrocarbon, the Operating Company, Liberty LLC, MarkWest Energy GP, Appalachia LLC, or MarkWest Utica Operating Company, L.L.C., a Delaware limited liability company, as debtor is on file in the office of the Secretary of State of the State of Delaware, (B) in respect of which a financing statement under the Uniform Commercial Code of the State of Texas naming MarkWest Pinnacle, L.L.C. as debtor is on file in the office of the Secretary of State of the State of Texas or (C) otherwise known to such counsel, without independent investigation; (xi) each of the Constituent Documents, as applicable, to which any of the MarkWest Entities (other than Bright Star, Centrahoma Processing LLC, a Delaware limited liability company, MarkWest Liberty Midstream & Resources, L.L.C., a Delaware limited liability company, MarkWest Pioneer, L.L.C., a Delaware limited liability company, and ~~bylaws and the Maryland General Corporation Law. This Agreement~~ ▇▇▇▇▇ Gathering) is a party has been duly authorized and validly executed and delivered by such entity that is a party thereto and, assuming due authorization, execution and delivery by each entity to such agreement other than such parties, each of the ~~Company.~~Constituent Documents (other than any Constituent Document governed by law other than Texas or Delaware law), as applicable, constitutes a valid and legally binding agreement of the MarkWest Entities that are parties thereto, enforceable against such entity in accordance with its respective terms, subject to (A) applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors’ rights generally and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (B) public policy, applicable law relating to the fiduciary duties and indemnification and contribution and an implied covenant of good faith and fair dealing; (~~vii~~xii) ~~The~~ the Partnership has all requisite power and authority to issue, sell and deliver the Units to be sold by it pursuant to this Agreement, in accordance with and upon the terms and conditions set forth in this Agreement, the Partnership Agreement, the Registration Statement, the Disclosure Package and the Prospectus; (xiii) To such counsel’s knowledge, (A) there are no legal, governmental or regulatory investigations, actions, suits or proceedings pending, threatened or contemplated to which any of the MarkWest Entities is or may be a party or to which any property of any of the MarkWest Entities is or may be subject that are required to be described in the Registration Statement, the Disclosure Package or the Prospectus that are not described as required by the Act and (B) there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement, the Disclosure Package or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required by the Act; and the statements included in ~~(a)~~ the Registration Statement, the Disclosure Package and the Prospectus under the captions “~~General Description of the Offered Securities~~Summary—The Offering,” “Description of ~~Our~~ Common ~~Stock~~Units,” “Cash Distribution Policy,” and “~~Certain Provisions of Maryland Law and of Our Charter and Bylaws~~Partnership Agreement” insofar as ~~supplemented by the information in Item 5.03~~ they purport to constitute summaries of the ~~Form 8-K, and~~ terms of the Common Units (bincluding the Units) ~~Item 15 “Indemnification~~ are accurate summaries of ~~Officers and Directors”~~ the terms thereof in ~~Part II of~~ all material respects; (xiv) the statements included in the Registration Statement, the Disclosure Package and the Prospectus under the captions “Cash Distribution Policy,” “Partnership Agreement,” and “Investment in MarkWest Energy Partners by Employee Benefit Plans” insofar as ~~such statements summarize matters~~ they purport to constitute summaries of ~~Maryland law~~ the terms of federal or Texas statutes, rules or regulations or the ~~charter~~ Delaware LP Act or ~~bylaws~~ the Delaware LLC Act, any legal and governmental proceedings or any contracts and other documents, constitute accurate summaries of the ~~Company~~terms of such statutes, ~~are true~~ rules and ~~correct~~ regulations, legal and governmental proceedings and contracts and other documents in all material respects.. The description of the federal statutes, rules and regulations set forth in the Partnership’s annual report on Form 10-K for the year ended December 31, 2012 under “Business—Regulatory Matters” and “Business—Environmental Matters” constitute accurate summaries of the terms of such statutes, rules and regulations in all material respects; (~~viii~~xv) No this Agreement and any applicable Terms Agreement have been duly authorized, validly executed and delivered by the MarkWest Parties; (xvi) none of the MarkWest Entities organized in Delaware or Texas is, nor after giving effect to the offering and sale of the Units and the application of the proceeds thereof as described in the Disclosure Package will any of such entities be, an “investment company” as such term is defined in the Investment Company Act of 1940, as amended; (xvii) no permit, consent, approval, authorization, ~~consent~~ order, registration, filing or ~~order of~~ qualification (“consent”) under the DGCL, Delaware LP Act, the Delaware LLC Act, the TBOC or ~~filing with any governmental authority of the State of Maryland pursuant to any~~ other Texas law ~~of the State of Maryland~~ or federal law is required ~~in connection with~~ for the offering, issuance and sale by the Partnership of the ~~Shares~~ Units to be sold by ~~the Company and consummation of the transactions contemplated by~~ it pursuant to this Agreement, ~~other than such as have been obtained or made, as~~ the ~~case may be. (ix) The~~ execution, delivery and performance of this Agreement by the ~~Company and~~ Partnership or the ~~issuance, sale and delivery~~ consummation by the Partnership of the ~~Shares does not~~ transactions contemplated by this Agreement, except for such consents required under the Act, the Exchange Act or under state securities or blue sky laws, as to which such counsel expresses no opinion; (xviii) neither the issue and sale of the Units, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will ~~not~~ (A) conflict with or result in a breach or violation of any ~~breach~~ of the terms or ~~constitute a default under (nor constitute any event which with notice~~provisions of, ~~lapse of time or both would result in any breach of~~ or constitute a default under): , or result in the creation or imposition of any lien, charge or encumbrance upon any of its property or assets pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument filed or incorporated by reference as an exhibit to the Partnership’s annual report on Form 10-K for the year ended December 31, 2012, the Partnership’s quarterly report on Form 10-Q for the period ended June 30, 2013, or any applicable current report on Form 8-K filed with the Commission after January 1, 2013, (iB) ~~the charter or bylaws~~ result in any violation of the ~~Company, (ii)~~ provisions of any ~~laws, rules or regulations~~ Constituent Documents of the ~~State of Maryland~~ MarkWest Entities, as applicable, or (~~iii~~C) to result in the ~~knowledge of such counsel, any decree, judgment or order of any court or governmental authority~~ violation of the ~~State of Maryland applicable by name to~~ DGCL, the ~~Company.~~ Delaware LP Act, the Delaware LLC Act, the TBOC, other Texas law or federal law (~~x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need~~ provided that we express no opinion with respect to compliance with any ~~federal or~~ state securities ~~laws~~ or federal or state ~~laws relating~~ antifraud law) or, to ~~fraudulent conveyances. (xi) The opinions~~ such counsel’s knowledge, any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority known to us, except, in the case of clauses (~~vii), (viii~~A) and (ixC) ~~above~~ above, for any such conflict, breach or violation that would not, individually or in the aggregate, have a Material Adverse Effect; and (xix) except as described in the Disclosure Package and the Constituent Documents of the MarkWest Entities, as applicable, there are no preemptive rights or other rights to subscribe for or to purchase, nor any restrictions upon the voting or transfer of, any shares of capital stock of or partnership or membership interest in the Partnership, MarkWest Energy GP or any of the Significant Subsidiaries, in each case pursuant to the Constituent Documents, as applicable, or, to such counsel’s knowledge, any other agreement or instrument listed as an exhibit to the Registration Statement to which such entities are a party or by which any of them may be ~~limited to Maryland Counsel~~bound. To such counsel’s ~~consideration~~ knowledge and except as described in the Partnership Agreement, neither the filing of the ~~Maryland General Corporation Law and only those~~ Registration Statement nor the offering or sale of the Units as contemplated by this Agreement gives rise to any rights for or relating to the registration of any Units or other ~~Maryland laws (~~securities of the Partnership, other than ~~securities and tax laws~~ as ~~to which Maryland Counsel need express no opinion)~~have been waived or deemed waived. To such counsel’s knowledge, if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland except as ~~to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type~~ described in ~~this Equity Distribution Agreement. (d) The Company shall have requested and caused Tax Counsel to furnish to~~ the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chief Executive Officer or the President Disclosure Package and the ~~principal financial~~ Prospectus, there are no outstanding options or ~~accounting officer of the Company, on behalf of the Company, dated as of such date, to the effect that the signers of such certificate have examined the Registra~~warran

Appears in 2 contracts

Sources: Equity Distribution Agreement (Markwest Energy Partners L P), Equity Distribution Agreement (Markwest Energy Partners L P)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Offered Units; any ~~other~~ material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The Company shall have requested and caused the Company Counsel to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described substantially in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken form attached hereto as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date.Exhibit A. (c) The Company shall have requested and caused ~~Maryland~~ the General Counsel or Senior Counsel of the Company to furnish to the Manager, on every date specified in Section 4(m) of this Agreement, ~~its~~ her opinion, dated as of such date and addressed to the Manager, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described substantially in the ~~Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is~~ form attached hereto as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreement.Exhibit B. (d) The ~~Company~~ Manager shall have ~~requested and caused Tax Counsel to furnish to~~ received from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Manager, on every date specified in Section 4(n) of this Agreement, ~~its opinion~~such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and ~~in form~~ sale of the Offered Units, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as ~~set forth on Exhibit A.~~the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the ~~Company,~~ Company signed by ~~the~~ its Chief Executive Officer ~~or the President~~ and ~~the principal financial or accounting officer of the Company, on behalf of the Company~~its Chief Financial Officer, dated as of such date, stating that each of them severally represents that: (i) the representations, warranties and agreements of the Company in Section 2 are true and correct on and as of such date, and the Company has complied with all its agreements contained herein in all material respects and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such date; (ii) no stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination for that purpose have been instituted or, to the ~~effect that the signers~~ knowledge of such ~~certificate have~~ officers, threatened; and the Commission has not notified the Company of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; (iii) such officer has carefully examined the ~~Registra~~Registration Statement, the Prospectus and the Disclosure Package, and, in such officer’s opinion, (A)(1) the Registration Statement, as of the most recent Effective Date, (2) the Prospectus, as of its date and on the applicable Settlement Date or Time of Delivery, and (3) the Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the most recent Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth; and (iv) since the respective dates as of which information is given in the Disclosure Package and the Prospectus, there has not been any development that resulted in a Material Adverse Effect or any development that could reasonably be expected to result in a material adverse effect on the condition (financial or otherwise), results of operations, stockholders’ or members’ equity or business of the Company and its Subsidiaries taken as a whole, whether or not arising in the ordinary course of business. (f) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(o) hereof and to the extent requested by the Manager in connection with any offering of the Offered Units, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance reasonably satisfactory to the Manager, (i) confirming that they are independent registered public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S X of the Commission and (ii) stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Disclosure Package, as of a date not more than three days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings. (g) The Company shall have requested and caused the Reserve Engineer to have furnished to the Manager, on every date specified in Section 4(p) hereof and to the extent requested by the Manager in connection with any offering of the Offered Units, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance reasonably satisfactory to the Manager, covering certain matters relating to information about the reserves of the Company presented in the Disclosure Package and the Prospectus. (h) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Offered Units as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto). (i) The Company shall have paid the required Commission filing fees relating to the Offered Units within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b). (j) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (k) Between the Execution Time and the time of any sale of Offered Units through the Manager, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as such term is used in Section 15E of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. (l) The Offered Units shall have been listed and admitted and authorized for trading on the Nasdaq, and satisfactory evidence of such actions shall have been provided to the Manager. (m) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Manager, at ▇▇▇ ▇▇▇▇▇ ▇▇▇. ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, or electronically if agreed to by the parties, on each such date as provided in this Agreement.

Appears in 1 contract

Sources: Equity Distribution Agreement (Linn Energy, LLC)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations ~~hereunder~~ hereunder, and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b); ) with respect to any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433sale of Shares; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The Company shall have requested and caused the Company Counsel to furnish to the Manager, on every ~~date specified~~ Representation Date that the Company delivers a certificate pursuant to Section 4(k), its opinion dated as of such date, in form and substance satisfactory to the Manager. (c) The Manager shall have received from ▇▇▇▇▇▇▇ Procter LLP, counsel for the Manager, on every Representation Date that the Company delivers a certificate pursuant to Section ~~4(l) of this Agreement~~4(k), its opinion, dated as of such date and addressed to the Manager, with respect to the ~~effect that: 1. Based solely on certificates of public officials, (i) each of the Company~~ issuance and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or (together with any supplement thereto) and other related matters as the ~~Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares~~ Manager may reasonably require and the ~~application of the proceeds~~ Company shall have furnished to such counsel such documents as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding they request for the purpose ~~been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject~~ of enabling them to ~~official notice of issuance. (ii) In rendering~~ pass upon such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The Company shall have requested and caused Maryland Counsel to furnish to the Manager, on every date specified in Section 4(m) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreement. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The Company shall have furnished or caused to be furnished to the Manager, on every ~~date specified in Section 4(k) of this Agreement~~Representation Date, unless a Waiver is applicable, a certificate of the Company, signed on behalf of the Company by the Chief Executive Officer or the ~~President and the principal financial or accounting officer of the Company, on behalf~~ Chief Financial Officer of the Company, dated as of such date, to the effect that the signers of such certificate have carefully examined the ~~Registra~~Registration Statement and the Prospectus and any amendment or supplement thereto and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (iii) since the date of the most recent financial statements included in the Prospectus, there has been no Material Adverse Effect, except as set forth in or contemplated in the Prospectus. (e) The Company shall have requested and caused Ernst & ▇▇▇▇▇, LLP to have furnished to the Manager, on every date specified in Section 4(n) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance reasonably satisfactory to the Manager, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in, or incorporated by reference in, the Registration Statement and the Prospectus. (f) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b). (g) Between the Execution Time and any Time of Delivery, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the ▇▇▇▇▇▇▇▇ Entities taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto). (h) Between the Execution Time and any Time of Delivery, there shall not have been any decrease in the rating of any of the ▇▇▇▇▇▇▇▇ Entities’ debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 3(a)(62) under the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. (i) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement or any Terms Agreement. (j) The Shares shall have been listed and admitted and authorized for trading on the Nasdaq, and satisfactory evidence of such actions shall have been provided to the Manager. (k) The Company shall have furnished to the Manager at each Representation Date such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement, as it relates to the Manager, and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇▇ Procter LLP, counsel for the Manager, at The New York Times Building, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, or electronically if agreed to by the parties, on each such date as provided in this Agreement.

Appears in 1 contract

Sources: Equity Distribution Agreement (Matthews International Corp)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; any ~~other~~ material required to be filed by the Company pursuant to Rule 433(d) ~~under~~ of the ~~Act,~~ Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The Company shall have requested and caused the Company Counsel to NY1 84770173v.5 furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: ~~1. Based solely on certificates of public officials,~~ (i) ~~each of the~~ The Company has been duly organized and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a ~~corporation,~~ corporation in good standing under the laws of the State of ~~Delaware, with~~ Ohio. (ii) The Company has all requisite corporate power and authority to ~~own or lease~~own, ~~as the case may be,~~ lease and operate its properties and to conduct its business as described in the Disclosure Package and the ~~Prospectus,~~ Prospectus and to enter into and perform its obligations under this Agreement and any applicable Terms Agreement. (iii) The Company is duly qualified to transact business and is in good standing in each jurisdiction in which it owns real property except where the failure to qualify and be ~~so qualified and~~ in good standing would not ~~reasonably be expected to~~ have a material adverse effect on the ~~business~~condition, financial ~~condition~~or otherwise, ~~results of operations~~or on the earnings, ~~management, properties~~ business affairs or business prospects of the Company and its ~~Subsidiaries~~subsidiaries considered as one enterprise. (iv) If the Company has one or more significant subsidiaries, ~~taken~~ as defined in Rule 405 of the Act (each, a “Significant Subsidiary”), each Significant Subsidiary has been duly incorporated or formed and is validly existing as a ~~whole. 3. The issued~~ corporation, partnership, limited liability company or real estate investment trust in good standing or in full force and ~~outstanding shares of capital stock or other ownership interests of each Subsidiary formed~~ effect, as the case may be, under the laws of the ~~State~~ jurisdiction of ~~Delaware~~ its incorporation or formation, has corporate, partnership, limited liability company or real estate investment trust power and authority to own, lease and operate its properties and to conduct its business, and is duly qualified as a foreign corporation, partnership, limited liability company or real estate investment trust to transact business and is in good standing or full force and effect, as the case may be, in each jurisdiction in which it owns real property, except where the failure to so qualify or be in good standing or full force and effect would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise. (v) The number of issued and outstanding capital shares of the Company is as set forth in the Disclosure Package and the Prospectus under “Capitalization,” and the outstanding capital shares of the Company have been duly authorized, validly issued, and are fully paid and non-assessable. The capital shares of the Company conform to the description thereof contained in the Disclosure Package and the Prospectus. All of the issued and outstanding capital stock of the Company's Significant Subsidiaries have been duly authorized and validly ~~issued and~~ issued, are fully paid and non-assessable and, to the best of such counsel's knowledge, except as ~~otherwise set forth~~ disclosed in the Disclosure Package and the Prospectus, are owned by the Company ~~either directly or through wholly-owned subsidiaries~~ free and clear of any security interest, ~~claim,~~ mortgage, pledge, lien, ~~encumbrance~~ encumbrance, claim or equity, except for such security interests, mortgages, pledges, liens, encumbrances, claims or equities that would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise. NY1 84770173v.5 (vi) Each of this Agreement and any applicable Terms Agreement has been duly authorized, executed and delivered by the Company. (vii) The Shares have been duly and validly authorized by all necessary corporate action and such Shares have been duly authorized for issuance and sale pursuant to this Agreement and any applicable Terms Agreement or any of the Alternative Distribution Agreements and any applicable terms agreement thereunder, as the case may be. Such Shares, when issued and delivered pursuant to this Agreement and any applicable Terms Agreement against payment of the consideration therefor, will be validly issued, fully paid and non-assessable. (viii) The issuance of the Shares will not be subject to any preemptive or other ~~restriction~~ similar rights of any ~~kind, and are subject to no preemptive rights~~ shareholder of the Company arising by operation of law or ~~options arising~~ under the ~~Delaware General Corporation Law~~ charter or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, by-laws of the ~~part of Registration Statement relating~~ Company or, to the ~~Shares for purposes~~ best of ~~the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares~~their knowledge, ~~the Disclosure Package~~ otherwise; and, except as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference set forth in the Disclosure Package and the Prospectus, as no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, capital shares of ~~its respective filing~~ or ~~effective date, appeared on its face to be appropriately responsive~~ ownership interests in the Company are outstanding. (ix) The Shares conform in all material respects to the ~~applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy~~ statements ~~under Regulation 14A, as~~ relating thereto contained in the ~~case may be, under the Exchange Act~~ Disclosure Package and the ~~rules~~ Prospectus; and ~~regulations of~~ the ~~Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or~~ certificates for the ~~financial statements, schedules or other financial data included in, or omitted from, such documents~~Shares are in valid and sufficient form. ~~6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency~~ (x) The Registration Statement is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made effective under the Act ~~(except with respect~~ and, to ~~any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with~~ the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any best of their ~~respective properties or assets may be bound or affected and which have been filed as exhibits to~~ knowledge, no stop order suspending the effectiveness of the Registration Statement ~~or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon~~ has been issued under the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations Act or proceedings ~~pending,~~ therefor initiated or threatened ~~or contemplated to which~~ by the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9Commission. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any Any required filing of the Base Prospectus and the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b)~~; and, based solely on a review of the list of stop orders on the Commission’s website~~ . (~~▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇~~xi) ~~on the date hereof, no stop order suspending the effectiveness of the~~ The Registration Statement and ~~no order directed at any document~~ the Prospectus (other than the documents incorporated by reference therein and the financial statements, related notes and schedules and other financial data and statistical data derived from the financial statements included or incorporated by reference in the Registration Statement or the Prospectus or ~~any amendment~~ omitted therefrom, as to which no opinion need be rendered) as of their respective effective or ~~supplement thereto~~issue dates, ~~has been issued, nor has any proceeding~~ complied as to form in all material respects with the requirements for registration statements on Form S-3 under the ~~purpose been instituted or threatened by~~ Act and the ~~Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance~~rules thereunder. (iixii) ~~In rendering such opinion~~Each document filed pursuant to the Exchange Act (other than the financial statements, ~~such counsel may state that its~~ related schedules and other financial data and statistical data derived from the financial statements included or incorporated by reference therein, as to which no opinion ~~is limited~~ need be rendered) and incorporated or deemed to ~~matters governed~~ be incorporated by reference in the ~~federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California~~ Disclosure Package and the ~~Delaware General Corporation Law~~Prospectus complied when so filed as to form in all material respects with the Exchange Act. ~~Such counsel shall also have furnished~~ NY1 84770173v.5 (xiii) To the best of their knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the ~~Manager~~Prospectus, ~~on every date specified in Section 4(l) of this Agreement~~other than those disclosed therein, ~~a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager~~and, to the ~~effect~~ best of their knowledge, all pending legal or governmental proceedings to which the Company or its Significant Subsidiaries is a party or of which any of the property of the Company or its subsidiaries is the subject that ~~(x) such counsel has acted as counsel~~ are not described in the Registration Statement, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material to the business of the Company and its subsidiaries considered as one enterprise. (xiv) To the best of their knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Registration Statement or to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto, and the descriptions thereof or references thereto are correct in all material respects. (xv) No authorization, approval or consent of any court or governmental authority or agency is required that has not been obtained in connection with the ~~preparation~~ consummation by the Company of the transactions contemplated by this Agreement or any applicable Terms Agreement, except such as may be required under the Act, the Exchange Act, and state securities laws or blue sky laws or real estate syndication laws; and to the best of their knowledge, the execution and delivery of this Agreement and any applicable Terms Agreement and the consummation of the transactions contemplated herein and therein and compliance by the Company with its obligations hereunder and thereunder will not (A) constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Significant Subsidiary pursuant to, any contract, indenture, mortgage, loan agreement, note, lease or other instrument that is filed or incorporated by reference as an exhibit to the Registration Statement to which the Company or any Significant Subsidiary is a party or by which they are bound or to which any of the property or assets of the Company or any Significant Subsidiary is subject, except (i) where such breach, default, creation or imposition would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise and (ii) that such counsel expresses no opinion with respect to compliance with financial covenants or tests, or (B) result in a violation of the provisions of any administrative or court order or decree to which the Company or any of its subsidiaries is subject and which is known to such counsel, the charter or by-laws or other organizational document of the Company or any Significant Subsidiary or any applicable law or administrative regulation. (xvi) Neither the Company nor any Significant Subsidiary is, or will be immediately after the consummation of the transactions contemplated by this Agreement and any applicable Terms Agreement, required to be registered under the Investment Company Act. NY1 84770173v.5 (xvii) The information in the Disclosure Package, the Prospectus and the Prospectus Supplement under the captions “Description of Common Shares,” “Certain Anti-Takeover Provisions,” “Certain Federal Income Tax Considerations” and “Supplemental United States Federal Income Tax Considerations,” to the extent that it constitutes matters of law or legal conclusions, has been reviewed by them and is correct in all material respects. (xviii) The Company has qualified as a REIT for each of its taxable years ended December 31, 1993 through 2011 and the Company is organized in conformity with the requirements for qualification as a REIT, and the Company's current and proposed method of operation will enable it to continue to meet the requirements for qualification and taxation as a REIT under the Code for its taxable year ending December 31, 2012 and for future taxable years. (xix) No holders of securities of the Company have rights to the registration of such securities under the Registration Statement. In addition, such counsel shall state that they have examined various documents and records and participated in conferences with officers and other representatives of the Company, representatives of the Accountants and with representatives of the Manager at which the contents of the Registration Statement, the Disclosure Package and the ~~Prospectus~~ Prospectus, and ~~has reviewed~~ any supplements or amendments thereto, and related matters were discussed and, although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package or the Prospectus, including the documents incorporated by reference therein (other than as specified above), and ~~(y) subject to the foregoing, such counsel confirms that~~any supplements or amendments thereto, on the basis of the ~~information gained in the course of performing the services referred to therein~~foregoing, ~~nothing~~ no facts came to ~~such counsel’s~~ their attention that ~~leads such counsel~~ caused them to believe that (i) the Registration ~~Statement~~Statement or any amendments thereto, on as of the most recent deemed effective ~~date,~~ date pursuant to Rule 430B(f)(2) ~~under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11~~ of the Act ~~in connection with~~ prior to the ~~sale~~ delivery of ~~the Shares~~such opinion, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the ~~Prospectus~~Disclosure Package, as ~~of its date, and as of~~ amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained ~~or contains any~~ an untrue statement of a material fact or omitted ~~or omits~~ to state ~~any~~ a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the ~~Disclosure Package~~Prospectus, as ~~amended~~ of its date or ~~supplemented~~ at the ~~Execution Time or at any applicable date related to the delivery of such opinion~~relevant Representation Date, contained ~~any~~ an untrue statement of a material fact or omitted 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; provided~~misleading (in each case, ~~however, such counsel is not passing upon and does not (a) assume any responsibility for~~ other than the ~~accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package~~ Form T-1 and the ~~Prospectus (except as~~ financial statements, related notes and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial data and statistical data derived from the financial statements included or incorporated by reference ~~in,~~ therein or omitted ~~from~~therefrom, ~~the Registration Statement, the Disclosure Package or the Prospectus~~as to which such counsel need express no statement). References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement ~~Date~~Date or Time of Delivery, as applicable. With respect to statements contained in the Disclosure Package, any statement contained in any of the constituent documents shall be deemed to be modified or superseded to the extent NY1 84770173v.5 that any information contained in subsequent constituent documents modifies or replaces such statement. (c) The ~~Company~~ Manager shall have ~~requested and caused Maryland Counsel to furnish to~~ received from Sidley Austin LLP, counsel for the Manager, on every date specified in Section 4(m) of this Agreement, ~~its opinion~~such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the ~~effect that:~~ issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (itogether with any supplement thereto) ~~The~~ and other related matters as the Manager may reasonably require, and the Company ~~has been duly incorporated and is validly existing~~ shall have furnished to such counsel such documents as ~~a corporation in good standing under~~ they request for the purpose of enabling them to pass upon such matters. In giving their opinions, Sidley Austin LLP may rely as to matters involving the laws of the State of ~~Maryland. (ii) The~~ Ohio upon the opinion of Company ~~has the corporate power~~ Counsel, and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms Counsel may rely as to ~~legal~~ matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to involving the laws of the State of ~~Maryland~~New York upon the opinion of Sidley Austin LLP. Company Counsel and Sidley Austin LLP may rely (i) as to the qualification of the Company or its subsidiaries to do business in any state or jurisdiction, ~~and Maryland Counsel need express no opinion with respect to any federal~~ upon certificates of appropriate government officials, telephonic confirmation by representatives of such states or ~~state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii)~~ confirmation from information contained on the websites of such states and (ixii) ~~above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws~~ as to ~~which Maryland Counsel need express no opinion)~~matters of fact, ~~if any,~~ upon certificates and ~~those approvals, authorizations, consents, orders~~ written statements of officers and employees of and accountants for the Company or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreementits subsidiaries. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the ~~Chief Executive Officer~~ Chairman of the Board or the President and the principal financial or accounting officer ~~of the Company, on behalf~~ of the Company, dated as of such date, to the effect that the signers of such certificate have carefully examined the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the representations and warranties of the Company in thi

Appears in 1 contract

Sources: Equity Distribution Agreement (Associated Estates Realty Corp)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable ~~Time,~~ Time and Settlement ~~Date and Time of Delivery~~Date, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(t) of this Agreement; any ~~other~~ material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the Act shall have been instituted ~~or threatened~~or, to the knowledge of the Company, be threatened by the Commission. (ib) The Company shall have requested and caused ~~the~~ Company Counsel to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are Agreement subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered4(r), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written ~~statement, addressed to the Manager~~ opinion and ~~dated as of such date,~~ disclosure letter in form and substance reasonably satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The ~~Company~~ Manager shall have ~~requested and caused Maryland Counsel to furnish to~~ received from Goodwin Procter LLP, counsel for the Manager, on every date specified in Section 4(m) of this ~~Agreement~~Agreement subject to Section 4(r), ~~its opinion~~such opinion or opinions and disclosure letter or letters, dated as of such date and addressed to the Manager, with respect to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the ~~Shares by~~ Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company ~~and consummation~~ shall have furnished to such counsel such documents as they request for the purpose of ~~the transactions contemplated by this Agreement, other than~~ enabling them to pass upon such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreementmatters. (d) The Company shall have requested and caused ~~Tax~~ IP Counsel to furnish to the Manager, on every date specified in Section 4(n) of this ~~Agreement~~Agreement subject to Section 4(r), ~~its opinion~~such written opinions, dated as of such date and addressed to the Manager, with respect to intellectual property matters, and ~~in form~~ the Company shall have furnished to such counsel such documents as ~~set forth on Exhibit A.~~they request for the purpose of enabling them to pass upon such matters. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this ~~Agreement~~Agreement subject to Section 4(r), a certificate of the Company, signed by the ~~Chief Executive Officer~~ chief executive officer or the President ~~and the principal financial or accounting officer~~ of the Company, ~~on behalf~~ and by the chief financial or chief accounting officer of the Company, dated as of such date, to the effect that the signers of such certificate have carefully examined the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the Company has received no stop order suspending the effectiveness of the Registration Statement, and no proceedings for such purpose or pursuant to Section 8A of the Act have been instituted or, to the Company’s knowledge, are threatened by the Commission; (ii) since the date of the most recent financial statements incorporated by reference in the Prospectus and the Disclosure Package, there has been no event or condition of a type described in Section 2(l) hereof (a “Material Adverse Change”), except as set forth in or contemplated in the Disclosure Package and the Prospectus; (iii) the representations, warranties and covenants set forth in Section 2 of this Agreement are true and correct with the same force and effect as though expressly made on and as of such date; and (iv) the Company has complied with all the agreements hereunder and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such date. (f) The Company shall have requested and caused each of PwC and Deloitte to have furnished to the Manager, on every date specified in Section 4(o) hereof, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance reasonably satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in AS 6101, as well as confirming that they have performed a review of any unaudited interim financial information of the Company included in the Registration Statement, the Disclosure Package and the Prospectus in accordance with AS 4105. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter. (g) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been any Material Adverse Change, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which is, in the reasonable judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto). (h) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (i) The Shares shall have been listed and admitted and authorized for trading on the Nasdaq, and satisfactory evidence of such actions shall have been provided to the Manager. (j) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement (beginning with the filing by the Company with the Commission of its Annual Report on Form 10-K for the fiscal year ended December 31, 2024), a certificate of the Company, signed by the chief financial officer or similar officer of the Company, dated as of such date, in form and substance satisfactory to the Manager providing “management comfort” with respect to certain financial information included in the Registration Statement and the Prospectus, as applicable. (k) Prior to each Settlement Date, the Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Goodwin Procter LLP, counsel for the Manager, at The New York Times Building, 620 Eighth Avenue, New York, New York 10018, on each such date as provided in this Agreement.

Appears in 1 contract

Sources: Equity Distribution Agreement (Quantum-Si Inc)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable ~~Time,~~ Time and Settlement ~~Date and Time of Delivery~~Date, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(u) of this Agreement; any ~~other~~ material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; ~~and~~ no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the Act shall have been instituted or ~~threatened~~threatened by the Commission; no stop order suspending or preventing the use of the Disclosure Package, Prospectus or any Issuer Free Writing Prospectus shall have been instituted or, to the Company’s knowledge, threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction. (ib) The Company shall have requested and caused the Company Counsel to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇ ▇▇▇~~.▇▇▇/~~▇ & ▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The Company shall have requested and caused Maryland Counsel ▇ LLP to furnish to the Manager, on every date specified in Section 4(m) of this Agreement, ~~its opinion~~an opinion and a negative assurance letter, ~~dated as of such date~~ each in the form and ~~addressed~~ substance reasonably satisfactory to the Manager~~, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland~~. (iic) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreement. (d) The Company Manager shall have ~~requested and caused Tax Counsel to furnish to~~ received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Manager, on every date specified in Section 4(n) of this Agreement, ~~its opinion~~such opinion or opinions and disclosure letter or letters, dated as of such date and addressed to the Manager, with respect to the issuance and ~~in form~~ sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as ~~set forth on Exhibit A.~~the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (ed) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section ~~4(k~~4(l) of this Agreement, a certificate of the Company, signed by the ~~Chief Executive Officer~~ chief executive officer or the President ~~and the principal financial or accounting officer~~ of the Company, ~~on behalf~~ and of the chief financial or chief accounting officer of the Company, dated as of such date, to the effect that the signers of such certificate have carefully examined the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the Company has received no stop order suspending the effectiveness of the Registration Statement, and no proceedings for such purpose or pursuant to Section 8A of the Act have been instituted or, to the Company’s knowledge, threatened by the Commission; (ii) since the date of the most recent financial statements included in the Prospectus and the Disclosure Package, there has been no event or condition of a type described in Section 2(l) hereof (a “Material Adverse Change”), except as set forth in or contemplated in the Disclosure Package and the Prospectus; (iii) the representations, warranties and covenants set forth in Section 2 of this Agreement are true and correct with the same force and effect as though expressly made on and as of such date; and (iv) the Company and its subsidiaries have complied with all the agreements hereunder and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such date. (e) Upon reasonable request by the Manager, the Company shall furnish or cause to be furnished to the Manager, at each Representation Date with respect to which the Company is obligated to deliver a certificate pursuant to Section 4(l), a certificate of the Company signed by the chief financial or chief accounting officer of the Company, dated as of such date, with respect to certain financial data in the Disclosure Package and the Prospectus, as amended and supplemented to such date, in form and substance reasonably satisfactory to the Manager. (f) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(q) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures contained in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72, as well as confirming that they have performed a review of any unaudited interim financial information of the Company included in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards No. 100. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter. (g) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) Material Adverse Change, except as set forth in or contemplated in the Disclosure Package (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or issuance of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto). (h) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (i) The Shares shall have been listed and admitted and authorized for trading on NASDAQ, and satisfactory evidence of such actions shall have been provided to the Manager. (j) Prior to each Settlement Date, the Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Manager, at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Palo Alto, California 94301, on each such date as provided in this Agreement.

Appears in 1 contract

Sources: Equity Distribution Agreement (Credo Technology Group Holding LTD)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Offered Units; any ~~other~~ material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The Company shall have requested and caused the Company Counsel to furnish to the Manager, on every date specified in Section ~~4(l~~4(k) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described substantially in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken form attached hereto as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date.Exhibit A. (c) The Company shall have requested and caused ~~Maryland~~ the General Counsel of the Company to furnish to the Manager, on every date specified in Section 4(k) of this Agreement, his opinion, dated as of such date and addressed to the Manager, substantially in the form attached hereto as Exhibit B. (d) The Company shall have requested and caused Canadian Counsel to furnish to the Manager, on every date specified in Section ~~4(m~~4(k) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to substantially in the ~~effect that:~~form attached hereto as Exhibit C. (ie) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreement. (d) The Company Manager shall have ~~requested and caused Tax Counsel to furnish to~~ received from ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Manager, on every date specified in Section ~~4(n~~4(k) of this Agreement, ~~its opinion~~such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and ~~in form~~ sale of the Offered Units, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as ~~set forth on Exhibit A.~~the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (ef) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the ~~Company,~~ Company signed by ~~the~~ its Chief Executive Officer ~~or the President~~ and ~~the principal financial or accounting officer of the Company, on behalf of the Company~~its Chief Financial Officer, dated as of such date, stating that each of them severally represents that: (i) the representations, warranties and agreements of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date, and the Company has complied with all its agreements contained herein and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings or examination for that purpose have been instituted or, to the ~~effect that the signers~~ knowledge of such ~~certificate have~~ officers, threatened; (iii) such officer has carefully examined the ~~Registra~~Registration Statement, the Prospectus and the Disclosure Package, and, in such officer’s opinion, (A)(1) the Registration Statement, as of the most recent Effective Date, (2) the Prospectus, as of its date and on the applicable Settlement Date or Time of Delivery, and (3) the Disclosure Package, as of the Applicable Time, did not and do not contain any untrue statement of a material fact and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein (except in the case of the Registration Statement, in the light of the circumstances under which they were made) not misleading, and (B) since the most recent Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth; and (iv) since the respective dates as of which information is given in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), there has not been any development that resulted in a Material Adverse Effect or any development that could reasonably be expected to result in a material adverse effect on the condition (financial or otherwise), prospects, results of operations, stockholders’ or members’ equity or business of the Company and its Subsidiaries taken as a whole, whether or not arising in the ordinary course of business. (g) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(k) hereof and to the extent requested by the Manager in connection with any offering of the Offered Units, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance reasonably satisfactory to the Manager, (i) confirming that they are independent registered public accountants within the meaning of the Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission and (ii) stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Disclosure Package and the Prospectus, as of a date not more than three days prior to such date), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings. (h) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (i) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Offered Units as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto). (i) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (j) The Offered Units shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager. (k) The Common Units are an Actively Traded Security on the date of determination of the offering price of any Offered Units. (l) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Manager, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, or electronically if agreed to by the parties, on each such date as provided in this Agreement.

Appears in 1 contract

Sources: Equity Distribution Agreement (Niska Gas Storage Partners LLC)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; any ~~other~~ material required to be filed by the Company pursuant to Rule 433(d) ~~under~~ of the ~~Act,~~ Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The Company shall have requested and caused the Company Counsel to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: ~~1. Based solely on certificates of public officials,~~ (i) ~~each of the~~ The Company has been duly organized and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a ~~corporation,~~ corporation in good standing under the laws of the State of ~~Delaware, with~~ Ohio. (ii) The Company has all requisite corporate power and authority to ~~own or lease~~own, ~~as the case may be,~~ lease and operate its properties and to conduct its business as described in the Disclosure Package and the ~~Prospectus,~~ Prospectus and to enter into and perform its obligations under this Agreement and any applicable Terms Agreement. (iii) The Company is duly qualified to transact business and is in good standing in each jurisdiction in which it owns real property except where the failure to qualify and be ~~so qualified and~~ in good standing would not ~~reasonably be expected to~~ have a material adverse effect on the ~~business~~condition, financial ~~condition~~or otherwise, ~~results of operations~~or on the earnings, ~~management, properties~~ business affairs or business prospects of the Company and its ~~Subsidiaries~~subsidiaries considered as one enterprise. (iv) If the Company has one or more significant subsidiaries, ~~taken~~ as defined in Rule 405 of the Act (each, a “Significant Subsidiary”), each Significant Subsidiary has been duly incorporated or formed and is validly existing as a ~~whole. 3. The issued~~ corporation, partnership, limited liability company or real estate investment trust in good standing or in full force and ~~outstanding shares of capital stock or other ownership interests of each Subsidiary formed~~ effect, as the case may be, under the laws of the ~~State~~ jurisdiction of ~~Delaware~~ its incorporation or formation, has corporate, partnership, limited liability company or real estate investment trust power and authority to own, lease and operate its properties and to conduct its business, and is duly qualified as a foreign corporation, partnership, limited liability company or real estate investment trust to transact business and is in good standing or full force and effect, as the case may be, in each jurisdiction in which it owns real property, except where the failure to so qualify or be in good standing or full force and effect would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise. (v) The number of issued and outstanding capital shares of the Company is as set forth in the Disclosure Package and the Prospectus under “Capitalization,” and the outstanding capital shares of the Company have been duly authorized, validly issued, and are fully paid and non-assessable. The capital shares of the Company conform to the description thereof contained in the Disclosure Package and the Prospectus. All of the issued and outstanding capital stock of the Company's Significant Subsidiaries have been duly authorized and validly ~~issued and~~ issued, are fully paid and non-assessable and, to the best of such counsel's knowledge, except as ~~otherwise set forth~~ disclosed in the Disclosure Package and the Prospectus, are owned by the Company ~~either directly or through wholly-owned subsidiaries~~ free and clear of any security interest, ~~claim,~~ mortgage, pledge, lien, ~~encumbrance~~ encumbrance, claim or equity, except for such security interests, mortgages, pledges, liens, encumbrances, claims or equities that would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise. (vi) Each of this Agreement and any applicable Terms Agreement has been duly authorized, executed and delivered by the Company. (vii) The Shares have been duly and validly authorized by all necessary corporate action and such Shares have been duly authorized for issuance and sale pursuant to this Agreement and any applicable Terms Agreement or any of the Alternative Distribution Agreements and any applicable terms agreement thereunder, as the case may be. Such Shares, when issued and delivered pursuant to this Agreement and any applicable Terms Agreement against payment of the consideration therefor, will be validly issued, fully paid and non-assessable. (viii) The issuance of the Shares will not be subject to any preemptive or other ~~restriction~~ similar rights of any ~~kind, and are subject to no preemptive rights~~ shareholder of the Company arising by operation of law or ~~options arising~~ under the ~~Delaware General Corporation Law~~ charter or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, by-laws of the ~~part of Registration Statement relating~~ Company or, to the ~~Shares for purposes~~ best of ~~the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares~~their knowledge, ~~the Disclosure Package~~ otherwise; and, except as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference set forth in the Disclosure Package and the Prospectus, as no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, capital shares of ~~its respective filing~~ or ~~effective date, appeared on its face to be appropriately responsive~~ ownership interests in the Company are outstanding. (ix) The Shares conform in all material respects to the ~~applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy~~ statements ~~under Regulation 14A, as~~ relating thereto contained in the ~~case may be, under the Exchange Act~~ Disclosure Package and the ~~rules~~ Prospectus; and ~~regulations of~~ the ~~Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or~~ certificates for the ~~financial statements, schedules or other financial data included in, or omitted from, such documents~~Shares are in valid and sufficient form. ~~6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency~~ (x) The Registration Statement is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made effective under the Act ~~(except with respect~~ and, to ~~any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with~~ the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any best of their ~~respective properties or assets may be bound or affected and which have been filed as exhibits to~~ knowledge, no stop order suspending the effectiveness of the Registration Statement ~~or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon~~ has been issued under the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations Act or proceedings ~~pending,~~ therefor initiated or threatened ~~or contemplated to which~~ by the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9Commission. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any Any required filing of the Base Prospectus and the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b)~~; and, based solely on a review of the list of stop orders on the Commission’s website~~ . (~~▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇~~xi) ~~on the date hereof, no stop order suspending the effectiveness of the~~ The Registration Statement and ~~no order directed at any document~~ the Prospectus (other than the documents incorporated by reference therein and the financial statements, related notes and schedules and other financial data and statistical data derived from the financial statements included or incorporated by reference in the Registration Statement or the Prospectus or ~~any amendment~~ omitted therefrom, as to which no opinion need be rendered) as of their respective effective or ~~supplement thereto~~issue dates, ~~has been issued, nor has any proceeding~~ complied as to form in all material respects with the requirements for registration statements on Form S-3 under the ~~purpose been instituted or threatened by~~ Act and the ~~Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance~~rules thereunder. (iixii) ~~In rendering such opinion~~Each document filed pursuant to the Exchange Act (other than the financial statements, ~~such counsel may state that its~~ related schedules and other financial data and statistical data derived from the financial statements included or incorporated by reference therein, as to which no opinion ~~is limited~~ need be rendered) and incorporated or deemed to ~~matters governed~~ be incorporated by reference in the ~~federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California~~ Disclosure Package and the ~~Delaware General Corporation Law. Such counsel shall also have furnished~~ Prospectus complied when so filed as to form in all material respects with the ~~Manager~~Exchange Act. (xiii) To the best of their knowledge, ~~on every date specified~~ there are no legal or governmental proceedings pending or threatened which are required to be disclosed in ~~Section 4(l) of this Agreement~~the Prospectus, ~~a written statement~~other than those disclosed therein, ~~addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager~~and, to the ~~effect~~ best of their knowledge, all pending legal or governmental proceedings to which the Company or its Significant Subsidiaries is a party or of which any of the property of the Company or its subsidiaries is the subject that ~~(x) such counsel has acted as counsel~~ are not described in the Registration Statement, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material to the business of the Company and its subsidiaries considered as one enterprise. (xiv) To the best of their knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Registration Statement or to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto, and the descriptions thereof or references thereto are correct in all material respects. (xv) No authorization, approval or consent of any court or governmental authority or agency is required that has not been obtained in connection with the ~~preparation~~ consummation by the Company of the transactions contemplated by this Agreement or any applicable Terms Agreement, except such as may be required under the Act, the Exchange Act, and state securities laws or blue sky laws or real estate syndication laws; and to the best of their knowledge, the execution and delivery of this Agreement and any applicable Terms Agreement and the consummation of the transactions contemplated herein and therein and compliance by the Company with its obligations hereunder and thereunder will not (A) constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Significant Subsidiary pursuant to, any contract, indenture, mortgage, loan agreement, note, lease or other instrument that is filed or incorporated by reference as an exhibit to the Registration Statement to which the Company or any Significant Subsidiary is a party or by which they are bound or to which any of the property or assets of the Company or any Significant Subsidiary is subject, except (i) where such breach, default, creation or imposition would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise and (ii) that such counsel expresses no opinion with respect to compliance with financial covenants or tests, or (B) result in a violation of the provisions of any administrative or court order or decree to which the Company or any of its subsidiaries is subject and which is known to such counsel, the charter or by-laws or other organizational document of the Company or any Significant Subsidiary or any applicable law or administrative regulation. (xvi) Neither the Company nor any Significant Subsidiary is, or will be immediately after the consummation of the transactions contemplated by this Agreement and any applicable Terms Agreement, required to be registered under the Investment Company Act. NY18233845v.8 (xvii) The information in the Disclosure Package, the Prospectus and the Prospectus Supplement under the captions “Description of Common Shares,” “Certain Anti-Takeover Provisions,” “Certain Federal Income Tax Considerations” and “Supplemental United States Federal Income Tax Considerations,” to the extent that it constitutes matters of law or legal conclusions, has been reviewed by them and is correct in all material respects. (xviii) The Company has qualified as a REIT for each of its taxable years ended December 31, 1993 through 2011 and the Company is organized in conformity with the requirements for qualification as a REIT, and the Company's current and proposed method of operation will enable it to continue to meet the requirements for qualification and taxation as a REIT under the Code for its taxable year ending December 31, 2012 and for future taxable years. (xix) No holders of securities of the Company have rights to the registration of such securities under the Registration Statement. In addition, such counsel shall state that they have examined various documents and records and participated in conferences with officers and other representatives of the Company, representatives of the Accountants and with representatives of the Manager at which the contents of the Registration Statement, the Disclosure Package and the ~~Prospectus~~ Prospectus, and ~~has reviewed~~ any supplements or amendments thereto, and related matters were discussed and, although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package or the Prospectus, including the documents incorporated by reference therein (other than as specified above), and ~~(y) subject to the foregoing, such counsel confirms that~~any supplements or amendments thereto, on the basis of the ~~information gained in the course of performing the services referred to therein~~foregoing, ~~nothing~~ no facts came to ~~such counsel’s~~ their attention that ~~leads such counsel~~ caused them to believe that (i) the Registration ~~Statement~~Statement or any amendments thereto, on as of the most recent deemed effective ~~date,~~ date pursuant to Rule 430B(f)(2) ~~under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11~~ of the Act ~~in connection with~~ prior to the ~~sale~~ delivery of ~~the Shares~~such opinion, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the ~~Prospectus~~Disclosure Package, as ~~of its date, and as of~~ amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained ~~or contains any~~ an untrue statement of a material fact or omitted ~~or omits~~ to state ~~any~~ a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the ~~Disclosure Package~~Prospectus, as ~~amended~~ of its date or ~~supplemented~~ at the ~~Execution Time or at any applicable date related to the delivery of such opinion~~relevant Representation Date, contained ~~any~~ an untrue statement of a material fact or omitted 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; provided~~misleading (in each case, ~~however, such counsel is not passing upon and does not (a) assume any responsibility for~~ other than the ~~accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package~~ Form T-1 and the ~~Prospectus (except as~~ financial statements, related notes and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial data and statistical data derived from the financial statements included or incorporated by reference ~~in,~~ therein or omitted ~~from~~therefrom, ~~the Registration Statement, the Disclosure Package or the Prospectus~~as to which such counsel need express no statement). References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement ~~Date~~Date or Time of Delivery, as applicable. With respect to statements contained in the Disclosure Package, any statement contained in any of the constituent documents shall be deemed to be modified or superseded to the extent that any information contained in subsequent constituent documents modifies or replaces such statement. (c) The ~~Company~~ Manager shall have ~~requested and caused Maryland Counsel to furnish to~~ received from Sidley Austin LLP, counsel for the Manager, on every date specified in Section 4(m) of this Agreement, ~~its opinion~~such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the ~~effect that:~~ issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (itogether with any supplement thereto) ~~The~~ and other related matters as the Manager may reasonably require, and the Company ~~has been duly incorporated and is validly existing~~ shall have furnished to such counsel such documents as ~~a corporation in good standing under~~ they request for the purpose of enabling them to pass upon such matters. In giving their opinions, Sidley Austin LLP may rely as to matters involving the laws of the State of ~~Maryland. (ii) The~~ Ohio upon the opinion of Company ~~has the corporate power~~ Counsel, and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms Counsel may rely as to ~~legal~~ matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to involving the laws of the State of ~~Maryland~~New York upon the opinion of Sidley Austin LLP. Company Counsel and Sidley Austin LLP may rely (i) as to the qualification of the Company or its subsidiaries to do business in any state or jurisdiction, ~~and Maryland Counsel need express no opinion with respect to any federal~~ upon certificates of appropriate government officials, telephonic confirmation by representatives of such states or ~~state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii)~~ confirmation from information contained on the websites of such states and (ixii) ~~above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws~~ as to ~~which Maryland Counsel need express no opinion)~~matters of fact, ~~if any,~~ upon certificates and ~~those approvals, authorizations, consents, orders~~ written statements of officers and employees of and accountants for the Company or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreementits subsidiaries. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the ~~Chief Executive Officer~~ Chairman of the Board or the President and the principal financial or accounting officer ~~of the Company, on behalf~~ of the Company, dated as of such date, to the effect that the signers of such certificate have carefully examined the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the s

Appears in 1 contract

Sources: Equity Distribution Agreement (Associated Estates Realty Corp)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company and the Operating Partnership of ~~its~~ their obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; any ~~other~~ material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The Company shall have requested and caused ~~the~~ Company Counsel to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, ~~its opinion~~opinions collectively covering the opinions the form of which are attached as Exhibit A, dated as of such date and addressed to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company ~~is not~~shall have requested and caused Company Counsel, ~~and after giving effect~~ to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished furnish to the Manager, on every date specified in Section 4(l) of this Agreement, ~~a written statement~~tax opinions, ~~addressed to~~ collectively covering the ~~Manager and~~ opinions the form of which are attached as Exhibit B, dated as of such ~~date, in form~~ date and ~~substance satisfactory~~ addressed to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The ~~Company~~ Manager shall have ~~requested and caused Maryland Counsel to furnish to~~ received from Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Manager, on every date specified in Section 4(m) of this Agreement, ~~its opinion~~such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the ~~Shares by~~ Shares, the ~~Company~~ Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and ~~consummation of the transactions contemplated by this Agreement,~~ other ~~than such as have been obtained or made,~~ related matters as the ~~case~~ Manager may ~~be. (ix) The execution~~reasonably require, ~~delivery~~ and ~~performance of this Agreement by~~ the Company and the ~~issuance, sale and delivery~~ Operating Partnership shall have furnished to such counsel such documents as they reasonably request for the purpose of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) enabling them to ~~the knowledge of~~ pass upon such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreementmatters. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the ~~Company~~Company and the Operating Partnership, signed by the Chief Executive Officer ~~or the President~~ and the principal financial or accounting officer of the ~~Company, on behalf~~ Company and the general partner of the ~~Company~~Operating Partnership, dated as of such date, to the effect that the signers of such certificate have carefully examined the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of such date except those related to a specific date with the same effect as if made on such date and the Company and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge or the Operating Partnership, threatened; and (iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package, there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package. (e) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(n) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures contained or incorporated by reference in the Registration Statement and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72, as well as confirming that they have performed a review of any unaudited interim financial information of the Company included or incorporated by reference in the Registration Statement and the Prospectus in accordance with Statement on Auditing Standards No. 100. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(p) of this Agreement, a certificate of the Company, signed by the principal financial or accounting officer of the Company, dated as of such date and addressed to the Manager, substantially in the form of Annex II hereto. (g) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any material and adverse change, or development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, in the sole judgment of the Manager, makes it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto).

Appears in 1 contract

Sources: Equity Distribution Agreement (Easterly Government Properties, Inc.)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the ~~Company~~ Partnership contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the ~~Company~~ Partnership of its obligations hereunder and (iii) the following additional conditions: ~~(a)~~ 6.1 The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Units; any ~~other~~ material required to be filed by the ~~Company~~ Partnership pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted ~~or threatened. (i) The Company shall have requested and caused the Company Counsel to furnish to the Manager~~or, on every date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of ~~such counsel~~the Partnership, ~~any decree, judgment or order applicable to the Company or any of its Subsidiaries~~threatened. ~~8. To the knowledge of such counsel, there are no actions, suits, claims, investigations~~ 6.2 The Partnership shall have furnished or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required caused to be ~~described~~ furnished the opinions and letters from its counsel and accountants as set forth in Section 4, on the ~~Registration Statement, the Prospectus or the Disclosure Package but are not so described~~dates as set forth in Section 4. 9. 6.3 The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/Manager shall have received from ▇▇▇▇▇▇ & ▇▇▇▇▇~~/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof~~▇ L.L.P., no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding counsel for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The Company shall have requested and caused Maryland Counsel to furnish to the Manager, on every date specified in Section 4(m) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6Section 4.22, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreement. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form dates as set forth ~~on Exhibit A.~~in Section 4, and the Partnership shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. ~~(e)~~ 6.4 The ~~Company~~ General Partner shall have furnished or caused to be furnished to the Manager, on every date specified in Section ~~4(k)~~ 4.11 of this Agreement, a certificate ~~of the Company, signed~~ by ~~the Chief Executive Officer or the President~~ its principal executive officer and ~~the~~ principal financial ~~or accounting~~ officer ~~of the Company, on behalf of the Company,~~ dated as of such date, to the effect that the ~~signers~~ signer of such certificate ~~have~~ has carefully examined the ~~Registra~~Registration Statement and the Prospectus and any supplements or amendments thereto and this Agreement and that: a) the representations and warranties of the Partnership in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; b) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued by the Commission and no proceedings for that purpose have been instituted or, to such officer’s knowledge, threatened; c) since the date of the most recent financial statements included in the Prospectus, there has been no material adverse effect on the general affairs, condition (financial or otherwise), results of operations, business, properties, assets or prospects of the Teekay Entities, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus, as amended or supplemented; and d) on those Representation Dates when the opinions referred to in Section 4.15 through Section 4.21 are not provided, that, to such officer’s knowledge, there has not been any material change in the facts on which the opinions in Section 4.15 through Section 4.21 are based. 6.5 The Partnership shall have requested and caused KPMG LLP to have furnished to the Manager, on every date specified in Section 4.23 hereof and to the extent reasonably requested by the Manager in connection with any offering of the Units a comfort letter, dated respectively as of such date, in form and substance reasonably satisfactory to the Manager. 6.6 Subsequent to the respective dates as of which information is disclosed in the Registration Statement and the Prospectus, except as otherwise stated therein, there shall not have been (i) any adverse change or decrease specified in the letter referred to in Section 6.5 or (ii) any adverse change, or any development involving a prospective adverse change that would reasonably be expected to have a Material Adverse Effect, which, in the Manager’s opinion, would materially and adversely affect the market for Units. 6.7 Since the date of the most recent financial statements included in the Prospectus, there shall not have been any decrease in the rating of any of the debt securities of the Partnership by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. 6.8 FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. 6.9 The Units shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager. 6.10 Prior to each Settlement Date and Time of Delivery, as applicable, the Partnership shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Partnership in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered to the office of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Manager, at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or electronically to ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. at an address provided by it to the Partnership or its counsel, on each such date as provided in this Agreement.

Appears in 1 contract

Sources: Equity Distribution Agreement (Teekay Offshore Partners L.P.)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 3(a)(ix) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The Company shall have requested and caused the Company ~~Counsel~~ Counsel, to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its ~~opinion~~written opinions, substantially similar to the form attached hereto as Exhibit 6(b)(i) and Exhibit 6(b)(ii), dated as of such date and addressed to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to (c) The Manager shall have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/received from Hunton & ▇▇▇▇▇▇▇~~▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof~~▇ LLP, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding counsel for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The Company shall have requested and caused Maryland Counsel to furnish to the Manager, on every date specified in Section 4(m) of this Agreement, ~~its opinion~~such opinions, dated as of such date and addressed to the Manager, with respect to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the ~~Shares by~~ Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company ~~and consummation~~ shall have furnished to such counsel such documents as they request for the purpose of ~~the transactions contemplated by this Agreement, other than~~ enabling them to pass upon such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreementmatters. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chairman of the Board, the Chief Executive ~~Officer~~ Officer, the President or the ~~President~~ Executive Vice President, General Counsel and Secretary and the principal financial or accounting officer of the Company, ~~on behalf~~ or such other executive officers of the ~~Company~~Company reasonably acceptable to the Manager, dated as of such date, to the effect that the signers of such certificate have carefully examined the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (iii) since the date of the most recent financial statements included in or incorporated by reference into the Registration Statement and the Disclosure Package there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement and the Disclosure Package. (e) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(n) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance reasonably satisfactory to the Manager, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of any unaudited interim financial information of the Company included or incorporated by reference in the Registration Statement and the Prospectus in accordance with Statement on Auditing Standards No. 100, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included or incorporated by reference in the Registration Statement and the Prospectus and reported on by them comply as to form with the applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted by the Commission; (ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and its subsidiaries; their limited review, in accordance with standards established under Statement on Auditing Standards No. 100, of the unaudited interim financial information included or incorporated by reference in the Registration Statement and the Prospectus; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and the audit committee of the Company and the subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to the date of the most recent audited financial statements included or incorporated by reference in the Registration Statement and the Prospectus, nothing came to their attention which caused them to believe that: (1) any unaudited financial statements included or incorporated by reference in the Registration Statement and the Prospectus do not comply as to form with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or incorporated by reference in Quarterly Reports on Form 10-Q under the Exchange Act; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by reference in the Registration Statement and the Prospectus; (2) with respect to the period subsequent to the date of the most recent financial statements (other than any capsule information), audited or unaudited, included or incorporated by reference in the Registration Statement and the Prospectus, there were any changes, at a specified date not more than five days prior to the date of the letter, in the capital stock and consolidated debt of the Company or decreases in the stockholders’ equity of the Company as compared with the amounts shown on the consolidated balance sheet dated as of the most recent financial statements included or incorporated by reference in the Registration Statement and the Prospectus included or incorporated by reference in the Registration Statement and the Prospectus, or for the period from such date to such specified date there were any decreases, as compared with the appropriate comparative period in consolidated revenues or in total or per share amounts of consolidated earnings of the Company before extraordinary items or of consolidate earnings except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Manager; (3) the information included or incorporated by reference in the Registration Statement and the Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data) and Item 503(d) (Ratio of Earnings to Fixed Charges) is not in conformity with the applicable disclosure requirements of Regulation S-K; and (4) To the extent capsule financial information is included or incorporated by reference in the Registration Statement and the Prospectus, the unaudited capsule information does not agree with the amounts set forth in the unaudited financial statements for the same periods or were not determined on a basis substantially consistent with that of the corresponding amounts in the audited financial statements included or incorporated by reference in the Registration Statement and the Prospectus; and (iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth or incorporated by reference in the Registration Statement and the Prospectus and in Exhibit 12 to the Registration Statement agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Since the respective dates as of which information is disclosed in the Registration Statement and the Disclosure Package, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Disclosure Package (exclusive of any amendment or supplement thereto). (g) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b). (h) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. (i) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (j) The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager. (k) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Hunton & ▇▇▇▇▇▇▇▇ LLP, counsel for the Manager, at Bank of America Plaza, Suite 4100, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attn: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, on each such date as provided in this Agreement.

Appears in 1 contract

Sources: Equity Distribution Agreement (National Retail Properties, Inc.)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(q) of this Agreement; any ~~other~~ material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the Act shall have been instituted or threatened. (ib) The Company shall have requested and caused ~~the~~ Company Counsel and Intellectual Property Counsel to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, opinions in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The ~~Company~~ Manager shall have ~~requested and caused Maryland Counsel to furnish to~~ received from L▇▇▇▇▇ & W▇▇▇▇▇▇ LLP, counsel for the Manager, on every date specified in Section 4(m) of this Agreement, ~~its opinion~~such opinion or opinions and disclosure letter or letters, dated as of such date and addressed to the Manager, with respect to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the ~~Shares by~~ Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company ~~and consummation~~ shall have furnished to such counsel such documents as they reasonably request for the purpose of ~~the transactions contemplated by this Agreement, other than~~ enabling them to pass upon such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreementmatters. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the ~~Chief Executive Officer~~ chief executive officer or the President ~~and the principal financial or accounting officer~~ of the Company, ~~on behalf~~ and of the chief financial or chief accounting officer of the Company, dated as of such date, to the effect that the signers of such certificate have carefully examined the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the Company has received no stop order suspending the effectiveness of the Registration Statement, and no proceedings for such purpose or pursuant to Section 8A of the Act have been instituted or, to the Company’s knowledge, threatened by the Commission; (ii) since the date of the most recent financial statements included in the Prospectus and the Disclosure Package, there has been no event or condition of a type described in Section 2(l) hereof (a “Material Adverse Change”), except as set forth in or contemplated in the Disclosure Package and the Prospectus; (iii) the representations, warranties and covenants set forth in Section 2 of this Agreement are true and correct with the same force and effect as though expressly made on and as of such date; and (iv) the Company and its subsidiaries have complied with all the agreements hereunder and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such date. (e) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(n) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures contained in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72, as well as confirming that they have performed a review of any unaudited interim financial information of the Company included in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards No. 100. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, if requested by the Manager, a certificate of the Company’ Chief Financial Officer of the Company, dated as of such date, in form and substance satisfactory to the Manager, of its Chief Financial Officer with respect to certain financial data contained in the Prospectus, providing “management comfort” with respect to such information. (g) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) Material Adverse Change, except as set forth in or contemplated in the Disclosure Package (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto). (h) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (i) The Shares shall have been listed and admitted and authorized for trading on the NASDAQ, and satisfactory evidence of such actions shall have been provided to the Manager. (j) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the applicable Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager with respect to itself only. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of L▇▇▇▇▇ & W▇▇▇▇▇▇ LLP, counsel for the Manager, at 1▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on each such date as provided in this Agreement.

Appears in 1 contract

Sources: Equity Distribution Agreement (Amicus Therapeutics, Inc.)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties ~~on the part~~ of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of ~~Delivery~~Delivery (except to the extent such representations and warranties expressly relate to a specific earlier date (in which case such representations and warranties shall be true and correct as of such specified earlier date)), (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement ~~thereto,~~ thereto required by Rule 424 to be filed with the ~~Commission~~ Commission, have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The Company shall have requested and caused the Company ~~Counsel~~ Counsel, to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents.Annex B. 4. (c) The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as shall have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (received from ▇▇▇.▇▇▇., ▇▇▇/▇ & ▇▇▇▇▇▇▇~~▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof~~▇ LLP, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding counsel for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The Company shall have requested and caused Maryland Counsel to furnish to the Manager, on every date specified in Section 4(m) of this Agreement, ~~its opinion~~such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the ~~Shares by~~ Shares, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company ~~and consummation~~ shall have furnished to such counsel such documents as they request for the purpose of ~~the transactions contemplated by this Agreement, other than~~ enabling them to pass upon such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreementmatters. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chief Executive Officer or the President and the principal financial or accounting officer of the Company, ~~on behalf of the Company,~~ dated as of such date, to the effect that the signers of such certificate have carefully examined the ~~Registra~~Registration Statement and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date (except to the extent such representations and warranties expressly relate to a specific earlier date (in which case such representations and warranties shall be true and correct as of such specified earlier date)) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (iii) since the date of the most recent financial statements included or incorporated by reference in the Registration Statement and the Prospectus, there has been no Material Adverse Effect except as set forth in or contemplated in the Registration Statement and the Prospectus. (e) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(n) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters, dated as of such date, in form and substance satisfactory to the Manager, substantially in the form of Annex C hereto, and confirming that they are independent accountants within the meaning of the Securities Act, the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of any unaudited interim financial information of the Company included or incorporated by reference in the Registration Statement and the Prospectus in accordance with Auditing Standard No. 4105. (f) Subsequent to the respective dates as of which information is disclosed in the Registration Statement and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any Material Adverse Effect, except as set forth in or contemplated in the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof)and the Prospectus (exclusive of any amendment or supplement thereto). (g) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. (h) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. (i) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (j) The Shares shall have been listed and admitted and authorized for trading on Nasdaq, and satisfactory evidence of such actions shall have been provided to the Manager. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be cancelled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Manager, at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, #1200, Irvine, California 92612, on each such date as provided in this Agreement.

Appears in 1 contract

Sources: Equity Distribution Agreement (Clean Energy Fuels Corp.)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 3(a) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The Company shall have requested and caused various counsel for the ~~Company Counsel~~ Company, including BVI counsel, PRC or in-house counsel and US counsel as appropriate, to furnish to the Manager, on every date specified in Section ~~4(l)~~ 4 of this Agreement, ~~its opinion~~their respective opinions and negative assurance statements, unless waived by the Manager, dated as of such date and addressed to the ~~Manager~~Manager in substantially the forms attached hereto as Exhibit A. (c) In rendering such opinions, such counsel may rely (A) to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are reasonably satisfactory to counsel for the Manager and (B) as to matters of fact, to the ~~effect that: 1. Based solely~~ extent they deem proper, on certificates of ~~public officials, (i) each~~ responsible officers of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectuspublic officials. References to the Prospectus in this paragraph (bc) shall also include any supplements thereto at the Settlement Date. (c) The Company shall have requested and caused Maryland Counsel to furnish to the Manager, on every date specified in Section 4(m) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreement. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section ~~4(k)~~ 4 of this Agreement, a certificate of the Company, signed by the Chief Executive Officer or the President and the principal financial or accounting officer of the Company, ~~on behalf of the Company,~~ dated as of such date, to the effect that the signers of such certificate have carefully examined the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (iii) since the date of the most recent financial statements included in the Disclosure Package, there has been no Material Adverse Effect on the condition (financial or otherwise), earnings, business or properties of the Company and its Significant Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus. (e) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4 hereof as requested by the Manager upon reasonable advance notice in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of any unaudited consolidated interim financial information of the Company and its subsidiaries and included or incorporated by reference in the Registration Statement and the Prospectus in accordance with Statement on Auditing Standards No. 100, and stating in effect that: (i) in their opinion the audited consolidated financial statements and financial statement schedules and pro forma financial statements included or incorporated by reference in the Registration Statement and the Prospectus and reported on by them comply as to form with the applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted by the Commission; (ii) on the basis of a reading of the latest unaudited consolidated financial statements made available by the Company and its consolidated subsidiaries; their limited review, in accordance with standards established under Statement on Auditing Standards No. 100, of the unaudited consolidated interim financial information for the most recent quarter for which the Company has filed unaudited financial statements on Form 6-K, carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and committees of the Company; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its consolidated subsidiaries as to transactions and events subsequent to the end of the most recent quarter for which the Company has filed unaudited consolidated financial statements on Form 6-K, nothing came to their attention which caused them to believe that: 1. any consolidated unaudited financial statements included or incorporated by reference in the Registration Statement and the Prospectus do not comply as to form with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or incorporated by reference under the Exchange Act; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by reference in the Registration Statement and the Prospectus; 2. with respect to the period subsequent to the most recent quarter for which the Company has filed unaudited consolidated financial statements on Form 6-K, there were any changes, at a specified date not more than five days prior to the date of the letter, in the long-term debt of the Company and its consolidated subsidiaries or capital stock of the Company or decreases in the stockholders’ equity of the Company as compared with the amounts shown on such consolidated balance sheets included or incorporated by reference in the Registration Statement and the Prospectus, or for the period from the end of such period to such specified date there were any decreases, as compared with the corresponding period in the preceding year, in net revenues or income before income taxes or in total or per share amounts of net income of the Company and its consolidated subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Manager; or 3. the selected financial data information included or incorporated by reference in the Registration Statement and the Prospectus is not in conformity with the applicable disclosure requirements of Form 20-F. (iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its consolidated subsidiaries) set forth or incorporated by reference in the Registration Statement and the Prospectus and in Exhibit 12 to the Registration Statement, agrees with the accounting records of the Company and its consolidated subsidiaries, excluding any questions of legal interpretation; and (f) The Company shall have requested and caused its Chief Financial Officer to have furnished to the Manager, on every date specified in Section 4 hereof and to the extent requested by the Manager in connection with any offering of the Shares, a certificate as to certain financial information included in the Disclosure Package and the Prospectus, in form and substance reasonably satisfactory to the Manager. (g) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any decrease in the amount of the earnings of the Company on a consolidated basis specified in the letter or letters referred to in paragraph (d) of this Section 6, or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its Significant Subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto). (h) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b). (i) The Financial Industry Regulatory Authority shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (j) The Shares shall have been listed and admitted and authorized for trading on the Trading Market, and satisfactory evidence of such actions shall have been provided to the Manager. (k) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. (l) At least three (3) full Trading Days prior to the date that a Draw Down Notice is delivered, the Company shall have delivered to the Manager written notice of its intention to deliver an order for the sale of the Shares. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Manager, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, on each such date as provided in this Agreement.

Appears in 1 contract

Sources: Continuous Offering Program Agreement (Origin Agritech LTD)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Purchase Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 3(a) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The Company shall have requested and caused the Company Counsel to furnish to the Manager, on every date specified in Section ~~4(l)~~ 4 of this Agreement, its ~~opinion~~opinion and negative assurance statement, dated as of such date and addressed to the ~~Manager~~Manager in substantially the form attached hereto as Exhibit A. (c) In rendering such opinions, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Florida or the Federal laws of the United States, to the ~~effect that: 1. Based solely~~ extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Manager and (B) as to matters of fact, to the extent they deem proper, on certificates of ~~public officials, (i) each~~ responsible officers of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectuspublic officials. References to the Prospectus in this paragraph (bc) shall also include any supplements thereto at the Settlement Date. (c) The Company shall have requested and caused Maryland Counsel to furnish to the Manager, on every date specified in Section 4(m) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreement. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section ~~4(k)~~ 4 of this Agreement, a certificate of the Company, signed by the Chief Executive Officer or the President and the principal financial or accounting officer of ~~the Company, on behalf of the Company, dated as of such date, to the effect that the signers of such certificate have examined the Registra~~the

Appears in 1 contract

Sources: At the Market Program Agreement (China Direct Industries, Inc.)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The Company shall have requested and caused the Company Counsel to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its ~~opinion~~opinion and negative assurance letter, in form and substance satisfactory to the Manager, dated as of such date and addressed to the ~~Manager,~~ Manager to the effect that: ~~1. Based solely on certificates of public officials,~~ (i) ~~each of~~ the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration ~~Statement, on the date it initially became~~ Statement has become effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Securities Act; any required filing of the Base Prospectus and the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); ~~and, based solely on a review~~ to the knowledge of ~~the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof~~such counsel, no stop order suspending the effectiveness of the Registration Statement ~~and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus~~ or any ~~amendment or supplement thereto,~~ notice objecting to its use has been issued, ~~nor has any proceeding~~ no proceedings for ~~the~~ that purpose have been instituted or ~~threatened by~~ threatened, and the ~~Commission. 11. The Shares have been approved for listing by~~ Registration Statement and the ~~NYSE subject~~ Prospectus (other than the financial statements and other financial and statistical information contained therein, as to ~~official notice of issuance. (ii) In rendering such opinion,~~ which such counsel ~~may state that its opinion is limited~~ need express no opinion) comply as to ~~matters governed by~~ form in all material respects with the ~~federal laws~~ applicable requirements of the ~~United States of America, the internal laws of the State of New York, the internal laws of the State of California~~ Securities Act and the ~~Delaware General Corporation Law. Such counsel shall also have furnished to~~ Exchange Act and the ~~Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager~~ respective rules thereunder; and ~~dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x)~~ such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel no reason to believe that ~~(i) the Registration Statement,~~ on the ~~effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of~~ Effective Date the Registration Statement ~~relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares,~~ contained an any untrue statement of a material fact or omitted to state a any material fact required to be stated therein or necessary in order to make the statements therein not ~~misleading; (ii)~~ misleading or that the ~~Prospectus,~~ Prospectus as of its ~~date,~~ date and ~~as of~~ any applicable date related to the ~~date~~ delivery of such ~~opinion, contained~~ opinion included or ~~contains~~ includes any untrue statement of a material fact or omitted or omits to state ~~any~~ a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not ~~misleading; or~~ misleading (~~iii~~in each case, other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion); (ii) such counsel has no reason to believe that the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not ~~misleading; provided~~misleading (other than the financial statements and other financial information contained therein, ~~however,~~ as to which such counsel need express no opinion); (iii) there is ~~not passing upon and does not (a) assume~~ no pending or, to the knowledge of such counsel, threatened action, suit or proceeding by or before any ~~responsibility for~~ court or governmental agency, authority or body or any arbitrator involving the ~~accuracy~~Company or any of its subsidiaries or its or their property, ~~completeness or fairness~~ of ~~the statements contained~~ a character required to be disclosed in the Registration ~~Statement~~Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included or incorporated by reference in the Disclosure Package and the Prospectus under the heading “Certain U.S. Federal Income Tax Considerations for Non-U.S. Holders” fairly summarize the matters therein described; (iv) the Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the Prospectus, will not be an “investment company” as defined in the Investment Company Act of 1940, as amended, and the rules and regulations promulgated thereunder; (v) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Securities Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the Shares by the Manager in the manner contemplated in this Agreement and any Terms Agreement, the Disclosure Package and the Prospectus and such other approvals (~~except~~ specified in such opinion) as have been obtained; (vi) neither the issue and sale of the Shares, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of, or imposition of any lien, charge or encumbrance upon any property or assets of the Company or its subsidiaries pursuant to, (i) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument to which the Company or its subsidiaries is a party or bound or to which its or their property is subject, or (ii) any statute, law, rule, regulation, judgment, order or decree applicable to the Company or its subsidiaries of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over the Company or its subsidiaries or any of its or their properties; and (vii) no holders of securities of the Company have rights to the registration of such securities under the Registration Statement. The Company shall have also requested and caused the Local Company Counsel to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its opinion, in form and substance satisfactory to the Manager, dated as of such date and addressed to the Manager to the effect that: (i) the Company is a corporation validly existing and in good standing under the laws of the Commonwealth of Virginia, with full corporate power and authority to own or lease, as the case may be, and to operate its properties and conduct its business as described in the ~~extent~~ Disclosure Package and the Prospectus; (ii) the Company has an authorized equity capitalization as set forth in ~~such opinion~~ the Disclosure Package and the Prospectus under the heading “Description of Capital Stock”; the capital stock of the Company conforms in ~~opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect~~ all material respects to the ~~financial~~ description thereof contained in the Disclosure Package and the Prospectus under the heading “Description of Capital Stock”; the statements ~~and supporting schedules and other financial and statistical data~~ included or incorporated by reference ~~in, or omitted from~~in the Disclosure Package and the Prospectus under the heading “Description of Capital Stock” and Item 15 of Part II of the Registration Statement insofar as such statements purport to constitute summaries of the terms of the Company’s Articles of Incorporation, the ~~Registration Statement~~Company’s Bylaws or the Virginia Stock Corporation Act (the “VSCA”), constitute accurate summaries of the terms of such documents and statute in all material respects; the Shares have been duly authorized and, when issued and delivered to and paid for by the Manager pursuant to this Agreement and any Terms Agreement, will be validly issued, fully paid and nonassessable; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares under the VSCA, the Company’s Articles of Incorporation or the Company’s Bylaws; (iii) this Agreement and any applicable Terms Agreement have been duly authorized, executed and delivered by the Company; (iv) no consent, approval, authorization, filing with or order of any court or governmental agency or body is required under the applicable laws of the Commonwealth of Virginia in connection with the transactions contemplated herein, except such as may be required under the blue sky laws of the Commonwealth of Virginia (as to which such counsel need not express any opinion) in connection with the purchase and distribution of the Shares by the Manager in the manner contemplated in this Agreement and any Terms Agreement, the Disclosure Package and the Prospectus and such other approvals (specified in such opinion) as have been obtained; and (v) neither the issue and sale of the Shares, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will violate (i) the Company’s Articles of Incorporation or the ~~Prospectus~~Company’s Bylaws , (ii) any applicable laws of the Commonwealth of Virginia or (iii) any order, decree or regulation, known to such counsel to be applicable to the Company, of any court or governmental agency or body of the Commonwealth of Virginia. In rendering such opinion, the Company Counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of New York or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of the Local Company Counsel and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the Company and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The ~~Company~~ Manager shall have ~~requested and caused Maryland Counsel to furnish to~~ received from ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Manager, on every date specified in Section 4(m) of this Agreement, ~~its opinion~~such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the ~~Shares by~~ Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, in form and substance satisfactory to the Manager, and the Company ~~and consummation~~ shall have furnished to such counsel such documents as they request for the purpose of ~~the transactions contemplated by this Agreement, other than~~ enabling them to pass upon such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreementmatters. (d) ~~The Company shall have requested and caused Tax Counsel to furnish to the Manager, on~~ On every date specified in Section ~~4(n~~4(k) of this Agreement, ~~its opinion~~unless a Waiver is applicable, ~~dated as of such date and addressed~~ or if the Company decides to sell Shares following a Representation Date when the ~~Manager~~Company relied on a Waiver, ~~and in form as set forth on Exhibit A. (e) The~~ then before the Manager sells any Shares, the Company shall have furnished or caused to be furnished to the ~~Manager, on every date specified in Section 4(k) of this Agreement,~~ Manager a certificate of the Company, signed by the ~~Chief Executive Officer~~ Chairman of the Board or the President and the principal financial or accounting officer ~~of the Company, on behalf~~ of the Company, dated as of such date, to the effect that the signers of such certificate have carefully examined the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (iii) since the date of the most recent financial statements included in the Disclosure Package, there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus. (e) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(n) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance reasonably satisfactory to the Manager, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in or incorporated by reference in the Registration Statement, the Prospectus and the Disclosure Package. (f) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto). (g) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. (h) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (i) The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager. (j) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Manager, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ each such date as provided in this Agreement.

Appears in 1 contract

Sources: Equity Distribution Agreement (Owens & Minor Inc/Va/)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable ~~Time,~~ Time and Settlement Date ~~and Time of Delivery,~~ (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 3(a) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The Company shall have requested and caused the Company Counsel to furnish to the Manager, on every date specified in Section ~~4(l)~~ 4 of this Agreement, its ~~opinion~~opinion and negative assurance statement, dated as of such date and addressed to the ~~Manager~~Manager in substantially the form attached hereto as Exhibit A. (c) In rendering such opinions, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Florida or the Federal laws of the United States, to the ~~effect that: 1. Based solely~~ extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Manager and (B) as to matters of fact, to the extent they deem proper, on certificates of ~~public officials, (i) each~~ responsible officers of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectuspublic officials. References to the Prospectus in this paragraph (bc) shall also include any supplements thereto at the Settlement Date. (c) The Company shall have requested and caused Maryland Counsel to furnish to the Manager, on every date specified in Section 4(m) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreement. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section ~~4(k)~~ 4 of this Agreement, a certificate of the Company, signed by the Chief Executive Officer or the President and the principal financial or accounting officer of the Company, ~~on behalf of the Company,~~ dated as of such date, to the effect that the signers of such certificate have carefully examined the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (iii) since the date of the most recent financial statements included in the Disclosure Package, there has been no Material Adverse Effect on the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus. (e) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4 hereof and to the extent requested by the Manager and upon reasonable advance notice in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of any unaudited interim financial information of the Company and included or incorporated by reference in the Registration Statement and the Prospectus in accordance with Statement on Auditing Standards No. 100, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules and pro forma financial statements included or incorporated by reference in the Registration Statement and the Prospectus and reported on by them comply as to form with the applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted by the Commission; (ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and their respective subsidiaries; their limited review, in accordance with standards established under Statement on Auditing Standards No. 100, of the unaudited interim financial information for the most recently reported quarter, carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and committees of the Company and their respective subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and their respective subsidiaries as to transactions and events subsequent to the end of such quarter, nothing came to their attention which caused them to believe that: 1. any unaudited financial statements included or incorporated by reference in the Registration Statement and the Prospectus do not comply as to form with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or incorporated by reference in Quarterly Reports on Form 10-Q under the Exchange Act; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by reference in the Registration Statement and the Prospectus; 2. with respect to the period subsequent to the most recently reported quarter, there were any changes, at a specified date not more than five days prior to the date of the letter, in the long-term debt of the Company and their respective subsidiaries or capital stock of the Company or decreases in the stockholders’ equity of the Company as compared with the amounts shown on such consolidated balance sheets included or incorporated by reference in the Registration Statement and the Prospectus, or for the period from the end of such period to such specified date there were any decreases, as compared with the corresponding period in the preceding year, in net revenues or income before income taxes or in total or per share amounts of net income of the Company and their respective subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Manager; or 3. the information included or incorporated by reference in the Registration Statement and the Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), Item 302 (Supplementary Financial Information), Item 402 (Executive Compensation) and Item 503(d) (Ratio of Earnings to Fixed Charges) is not in conformity with the applicable disclosure requirements of Regulation S-K. (iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth or incorporated by reference in the Registration Statement and the Prospectus and in Exhibit 12 to the Registration Statement, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation; and (f) The Company shall have requested and caused its principal financial and accounting officer to have furnished to the Manager, on every date specified in Section 4 hereof and to the extent requested by the Manager in connection with any offering of the Shares, a certificate as to certain financial information included in the Disclosure Package and the Prospectus, in form and substance reasonably satisfactory to the Manager. (g) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (d) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto). (h) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b). (i) The Financial Industry Regulatory Authority shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (j) The Shares shall have been listed and admitted and authorized for trading on the Trading Market, and satisfactory evidence of such actions shall have been provided to the Manager. (k) Prior to each Settlement Date, the Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Wei▇▇▇▇▇▇ ▇▇i▇▇ ▇▇P, counsel for the Manager, at 420 ▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇n each such date as provided in this Agreement.

Appears in 1 contract

Sources: Continuous Offering Program Agreement (China Direct Industries, Inc.)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: ~~(a)~~ 6.1 The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; any ~~other~~ material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or or, to the knowledge of the Company, threatened. ~~(i)~~ 6.2 The Company shall have ~~requested and~~ furnished or caused the Company Counsel to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be ~~so qualified~~ furnished the opinions and ~~in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company~~ letters from its counsel and ~~its Subsidiaries, taken~~ accountants as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. Section 4~~. The Registration Statement~~, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under dates as set forth in Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable4. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as 6.3 The Manager shall have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/received from ▇▇▇▇▇ ▇▇▇▇~~▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof~~▇ L.L.P., no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding counsel for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The Company shall have requested and caused Maryland Counsel to furnish to the Manager, on every date specified in Section 4(m) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in Section 4.19, on the ~~Disclosure Package~~ dates as set forth in Section 4, and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreement. (d) The Company shall have ~~requested and caused Tax Counsel~~ furnished to ~~furnish~~ such counsel such documents as they request for the purpose of enabling them to ~~the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of~~ pass upon such ~~date and addressed to the Manager, and in form as set forth on Exhibit A.~~matters. ~~(e)~~ 6.4 The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section ~~4(k)~~ 4.11 of this Agreement, a certificate ~~of the Company, signed~~ by ~~the Chief Executive Officer~~ its principal executive officer or ~~the President and the~~ principal financial ~~or accounting~~ officer ~~of the Company, on behalf of the Company,~~ dated as of such date, to the effect that the ~~signers~~ signer of such certificate ~~have~~ has carefully examined the ~~Registra~~Registration Statement and the Prospectus and any supplements or amendments thereto and this Agreement and that: a) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; b) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued by the Commission and no proceedings for that purpose have been instituted or, to such officer’s knowledge, threatened; c) since the date of the most recent financial statements included in the Prospectus, there has been no material adverse effect on the general affairs, condition (financial or otherwise), results of operations, business, properties, assets or prospects of the Teekay Entities, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus, as amended or supplemented; and d) on those Representation Dates when the opinions referred to in Section 4.14 through Section 4.18 are not provided, that, to such officer’s knowledge, there has not been any material change in the facts on which the opinions in Section 4.14 through Section 4.18 are based. 6.5 The Company shall have requested and caused KPMG LLP to have furnished to the Manager, on every date specified in Section 4.20 hereof and to the extent reasonably requested by the Manager in connection with any offering of the Shares a comfort letter, dated respectively as of such date, in form and substance reasonably satisfactory to the Manager. 6.6 Subsequent to the respective dates as of which information is disclosed in the Registration Statement and the Prospectus, except as otherwise stated therein, there shall not have been (i) any adverse change or decrease specified in the letter referred to in Section 6.5 or (ii) any adverse change, or any development involving a prospective adverse change that would reasonably be expected to have a Material Adverse Effect, which, in the Manager’s opinion, would materially and adversely affect the market for Shares. 6.7 Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. 6.8 FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. 6.9 The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager. 6.10 Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered to the office of ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Manager, at ▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or electronically to ▇▇▇▇▇ ▇▇▇▇▇ L.L.P. at an address provided by it to the Company or its counsel, on each such date as provided in this Agreement.

Appears in 1 contract

Sources: Equity Distribution Agreement (Teekay Corp)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The Company shall have requested and caused the Company Counsel to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: ~~1. Based solely on certificates of public officials,~~ (i) ~~each~~ the statements set forth in the Prospectus under the caption “Material U.S. Federal Income Tax Considerations,” insofar as they purport to describe provisions of the ~~Company and each subsidiary listed on Schedule A attached~~ U.S. federal income tax laws referred to ~~such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be~~therein, and ~~is in good standing in each jurisdiction~~ subject to the limitations, qualifications and assumptions set forth ~~opposite~~ therein and in such ~~entity~~counsel’s ~~name under the column heading “State(s) of Foreign Qualification” on~~ opinion, fairly summarize, in all material respects, such ~~Schedule A and~~ laws; (ii) ~~Texas-LTC Limited Partnership~~ the Company is ~~in good standing in Texas. 2. Each Listed Subsidiary formed under~~ not, and immediately after giving effect to the ~~laws~~ offering and sale of the ~~State of Delaware is validly existing as a corporation, in good standing under~~ Shares and the ~~laws~~ application of the ~~State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business~~ proceeds thereof as described in the ~~Disclosure Package and the Prospectus~~Prospectus will not be, ~~except where the failure~~ required to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken register as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except an “investment company” as ~~otherwise set forth~~ such term is defined in the ~~Disclosure Package and~~ Investment Company Act of 1940, as amended; (iii) the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration ~~Statement, on the date it initially became~~ Statement has been declared effective ~~under the Act and on the effective date, pursuant to Rule 430B(f)(2)~~ under the Act, and any required filing of the ~~part~~ Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and that such counsel has been orally advised by the Staff of the Commission that no stop order suspending the effectiveness of the Registration Statement ~~relating~~ has been issued, and that no notice objecting to its use and no proceeding for such purpose has been instituted or overtly threatened by the Commission; and (iv) the Shares covered by such opinion have been approved for ~~purposes~~ listing by the NYSE subject to official notice of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof issuance; (in v) each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents.; and ~~6. No approval~~(vi) the Registration Statement (as of its effective date) and the Prospectus (as of its date) (except for the financial statements and financial schedules and other financial data included therein, ~~authorization, consent or order of or filing with~~ as to which such counsel need not express any ~~federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required~~ opinion) appeared on their face to be appropriately responsive in ~~connection with~~ all material respects to the ~~issuance and sale of Shares by the Company and consummation by the Company~~ requirements of the ~~transactions contemplated by this Agreement other than such as have been obtained or made under~~ Securities Act and the ~~Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the~~ applicable rules and regulations of ~~FINRA, as to which no opinion need be rendered). 7. The execution and delivery by~~ the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Commission thereunder Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration ~~Statement, on the~~ Statement (as of its effective date~~, pursuant to Rule 430B(f)(2~~) ~~under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares,~~ contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (aA) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus ~~(except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters)~~ and (bB) express any belief with respect to the financial statements and supporting schedules and other financial ~~and statistical~~ data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this ~~paragraph (b~~Section 6(b) shall also include any supplements thereto at the Settlement Date. (c) ~~The Company~~ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Assistant General Counsel of the Company, shall ~~have requested and caused Maryland Counsel to~~ furnish to the Manager, on every date specified in Section 4(m) of this Agreement, ~~its~~ his opinion, dated as of such date and addressed to the Manager, to the effect that: (i) ~~The~~ the Company has been duly ~~incorporated and~~ incorporated, is validly existing as a corporation in good standing under the laws of the ~~State~~ jurisdiction of ~~Maryland. (ii) The Company~~ its incorporation, has the corporate power and authority to own ~~or lease~~ its ~~properties,~~ property and to conduct its business as described in the Disclosure Package and the Prospectus and is duly qualified to ~~enter into~~ transact business and ~~perform~~ is in good standing in each jurisdiction in which the conduct of its ~~obligations under this Agreement.~~business or its ownership or leasing of property requires such qualification, except to the extent that the failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as a whole; (~~iii~~ii) ~~The authorized capital stock~~ each consolidated subsidiary of the Company has been duly incorporated, is validly existing as ~~set forth~~ a corporation in good standing under the laws of the jurisdiction of its incorporation, has the corporate power and authority to own its property and to conduct its business as described in the Disclosure Package and the Prospectus and is duly qualified to transact business and is in good standing in each jurisdiction in which the ~~third paragraph under~~ conduct of its business or its ownership or leasing of property requires such qualification, except to the ~~caption “General Description of~~ extent that the ~~Offered Securities”~~ failure to be so qualified or be in good standing would not have a material adverse effect on the Company and its subsidiaries, taken as ~~supplemented by~~ a whole; (iii) the ~~information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The~~ authorized capital stock of the Company conforms as to legal matters ~~in all material respects~~ to the description thereof contained in each of the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable.Prospectus; (iv) ~~The sale and~~ the Common Shares outstanding prior to the issuance of the Shares have been duly authorized by and are validly issued, fully paid and non-assessable; (v) all ~~necessary corporate action on~~ of the ~~part~~ issued shares of capital stock of each consolidated subsidiary of the Company ~~under its charter~~ have been duly and ~~bylaws~~ validly authorized and ~~the Maryland General Corporation Law, and when Shares are~~ issued, ~~delivered~~ are fully paid and ~~paid for as contemplated~~ non-assessable and are owned directly by the ~~Directors’ Resolutions~~ Company, free and clear of all liens, encumbrances, equities or claims; (vi) the Shares have been duly authorized and, when issued and delivered in accordance with the terms of this Agreement or any applicable Terms Agreement, ~~such Shares~~ will be validly issued, fully paid and non-assessable~~. The holders~~ , and the issuance of ~~outstanding shares of capital stock of the Company are~~ such Shares will not ~~entitled~~ be subject to any preemptive or ~~other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company.~~similar rights; (vvii) ~~The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law~~ this Agreement and ~~with~~ any applicable ~~requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this~~ Terms Agreement have been duly ~~authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly~~ authorized, executed and delivered by the Company.; (~~vii~~viii) ~~The statements included~~ the execution and delivery by the Company of, and the performance by the Company of its obligations under, this Agreement and any applicable Terms Agreement will not contravene any provision of applicable law or the articles of association or by-laws of the Company or, to the best of such counsel’s knowledge, any judgment, order or decree of any governmental body, agency or court having jurisdiction over the Company or any consolidated subsidiary, or, to the best of such counsel’s knowledge, any agreement or other instrument binding upon the Company or any of its consolidated subsidiaries, except for contraventions of agreements or instruments that are not material to the Company and its subsidiaries, taken as a whole, and that do not have a material adverse effect on the ability of the Company to execute, deliver or perform its obligations under this Agreement or any applicable Terms Agreement, and no consent, approval, authorization or order of, or qualification with, any governmental body or agency is required for the performance by the Company of its obligations under this Agreement or any applicable Terms Agreement, except (A) approval of the PSB and (B) such as may be required by the securities or blue sky laws of the various states in connection with the offer and sale of the Shares; (aix) after due inquiry, such counsel does not know of any legal or governmental proceedings pending or threatened to which the Company or any of its consolidated subsidiaries is a party or to which any of the properties of the Company or any of its consolidated subsidiaries is subject that are required to be described in the Registration Statement, the Prospectus or the Disclosure Package and are not so described or of any statutes, regulations, contracts or other documents that are required to be described in the Registration Statement, the Prospectus or the Disclosure Package or to be filed as exhibits to the Registration Statement that are not described or filed as required; and (x) the statements relating to legal matters, documents or proceedings included in the Prospectus under the captions “~~General Description~~ Risk Factors—We are subject to substantial regulation on the federal, state and local levels, and changes in regulatory or legislative policy could jeopardize our full recovery of ~~the Offered Securities~~costs,” “Risk Factors—Anti-takeover provisions of Vermont law, our articles of association and our bylaws may prevent or delay an acquisition of us that stockholders may consider favorable or attempts to replace or remove our management that could be beneficial to our stockholders,” “Description of Our ~~Common~~ Capital Stock,” and “~~Certain Provisions~~ Anti-Takeover (c) Narrative Description of ~~Maryland Law~~ Business — Franchise,” “Business — (c) Narrative Description of Business — Regulation” and “Management’s Discussion and Analysis of ~~Our Charter~~ Financial Condition and ~~Bylaws~~Results of Operations — Recent Energy Policy Initiatives,” ~~as supplemented by~~ and (C) the ~~information~~ Registration Statement in Item ~~5.03 of the Form 8-K~~15, ~~and (b) Item 15 “Indemnification of Officers and Directors”~~ in ~~Part II of the Registration Statement, insofar as such statements~~ each case fairly summarize ~~matters of Maryland law or the charter or bylaws of the Company, are true and correct~~ in all material ~~respects. (viii) No approval~~respects such matters, ~~authorization, consent~~ documents or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreementproceedings. (d) The ~~Company~~ Manager shall have ~~requested and caused Tax Counsel to furnish to~~ received from ▇▇▇▇▇ Day, counsel for the Manager, on every date specified in Section 4(n) of this Agreement, ~~its opinion~~such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and ~~in form~~ sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as ~~set forth on Exhibit A.~~the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the President and Chief Executive Officer ~~or the President~~ and the principal financial or accounting officer of the Company, on behalf of the Company, dated as of such date, to the effect that the signers of such certificate have examined the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; (iii) since the date of the most recent financial statements included in the Disclosure Package, there has been no material adverse effect on the business, financial condition, results of operations, management or properties of the Company and its consolidated subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus; and (iv) they have duly examined the Disclosure Package and the Prospectus and, in their opinion (A) as of each Applicable Time, the Disclosure Package and the Prospectus did not include any untrue statement of a material fact and did not omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and (B) since each Applicable Time no event has occurred which should have been set forth in a supplement or amendment to the Disclosure Package and the Prospectus. (f) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(o) of this Agreement and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72, as well as confirming that they have performed a review of any unaudited interim financial information of the Company included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards No. 100. References to the Prospectus in this Section 6(f) include any supplement thereto at the date of the letter. (g) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in Section 6(f) of this Agreement or (ii) any change, or any development involving a prospective change, in or affecting the business, financial condition, results of operations, management or properties of the Company and its consolidated subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisab

Appears in 1 contract

Sources: Equity Distribution Agreement (Central Vermont Public Service Corp)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(r) of this Agreement; any ~~other~~ material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the Act shall have been instituted or threatened. (ib) The Company shall have requested and caused ~~the~~ Company Counsel to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, ~~its opinion~~an opinion in form and substance reasonably satisfactory to the Manager. (c) The Manager shall have received from counsel for the Manager on every date specified in Section 4(l) of this Agreement, such opinion or opinions and disclosure letter or letters, dated as of such date and addressed to the Manager, with respect to the ~~effect that: 1. Based solely on certificates of public officials, (i) each of the Company~~ issuance and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Disclosure Package, the Prospectus or (together with any supplement thereto) and other related matters as the ~~Disclosure Package but are not so described. 9. The Company is not~~Manager may reasonably require, and ~~after giving effect~~ the Company shall have furnished to ~~the issuance of the Shares and the application of the proceeds~~ such counsel such documents as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding they request for the purpose ~~been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject~~ of enabling them to ~~official notice of issuance~~pass upon such matters. (iid) ~~In rendering such opinion, such counsel may state that its opinion is limited~~ The Company shall have furnished or caused to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have be furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a ~~written statement, addressed to~~ certificate of the ~~Manager and dated as~~ Chief Financial Officer of ~~such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to~~ the Company ~~in connection~~ with ~~the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject~~ respect to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements certain financial data contained in the Registration Statement, the Disclosure Package and the Prospectus ~~(except as~~ and ~~to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d)~~ any supplements or amendments thereto, providing “management comfort” with respect to ~~certain tax matters)~~ such information, in form and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The Company shall have requested and caused Maryland Counsel to furnish substance reasonably satisfactory to the Manager, on every date specified in Section 4(m) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreement. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A.; (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section ~~4(k~~4(l) of this Agreement, a certificate of the Company, signed by the ~~Chief Executive Officer~~ chief executive officer or the President ~~and the principal financial or accounting officer~~ of the Company, ~~on behalf~~ and of the chief financial or chief accounting officer of the Company, dated as of such date, to the effect that the signers of such certificate have ~~examined~~ reviewed the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the Company has received no stop order suspending the effectiveness of the Registration Statement, and no proceedings for such purpose or pursuant to Section 8A of the Act have been instituted or, to the Company’s knowledge, threatened by the Commission; (ii) since the date of the most recent financial statements included in the Prospectus and the Disclosure Package, there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus; (iii) the representations and warranties set forth in Section 2 of this Agreement are true and correct with the same force and effect as though expressly made on and as of such date; and (iv) the Company and its subsidiaries have complied with all the agreements hereunder and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such date. (f) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(o) hereof to the extent financial information audited or reviewed by such firms is included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus, as amended and supplemented to the date of such letter and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance reasonably satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures contained in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72, as well as confirming that they have performed a review of any unaudited interim financial information of the Company included in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards No. 100. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter. (g) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto). (h) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (i) The Shares shall have been listed and admitted and authorized for trading on Nasdaq, and satisfactory evidence of such actions shall have been provided to the Manager. (j) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Designated Manager such further information, certificates and documents as the Designated Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the applicable Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, on each such date as provided in this Agreement.

Appears in 1 contract

Sources: Equity Distribution Agreement (Vroom, Inc.)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; any ~~other~~ material required to be filed by the Company pursuant to Rule 433(d) ~~under~~ of the ~~Act,~~ Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The Company shall have requested and caused the Company Counsel to NY1 8476991v.3 furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: ~~1. Based solely on certificates of public officials,~~ (i) ~~each of the~~ The Company has been duly organized and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a ~~corporation,~~ corporation in good standing under the laws of the State of ~~Delaware, with~~ Ohio. (ii) The Company has all requisite corporate power and authority to ~~own or lease~~own, ~~as the case may be,~~ lease and operate its properties and to conduct its business as described in the Disclosure Package and the ~~Prospectus,~~ Prospectus and to enter into and perform its obligations under this Agreement and any applicable Terms Agreement. (iii) The Company is duly qualified to transact business and is in good standing in each jurisdiction in which it owns real property except where the failure to qualify and be ~~so qualified and~~ in good standing would not ~~reasonably be expected to~~ have a material adverse effect on the ~~business~~condition, financial ~~condition~~or otherwise, ~~results of operations~~or on the earnings, ~~management, properties~~ business affairs or business prospects of the Company and its ~~Subsidiaries~~subsidiaries considered as one enterprise. (iv) If the Company has one or more significant subsidiaries, ~~taken~~ as defined in Rule 405 of the Act (each, a “Significant Subsidiary”), each Significant Subsidiary has been duly incorporated or formed and is validly existing as a ~~whole. 3. The issued~~ corporation, partnership, limited liability company or real estate investment trust in good standing or in full force and ~~outstanding shares of capital stock or other ownership interests of each Subsidiary formed~~ effect, as the case may be, under the laws of the ~~State~~ jurisdiction of ~~Delaware~~ its incorporation or formation, has corporate, partnership, limited liability company or real estate investment trust power and authority to own, lease and operate its properties and to conduct its business, and is duly qualified as a foreign corporation, partnership, limited liability company or real estate investment trust to transact business and is in good standing or full force and effect, as the case may be, in each jurisdiction in which it owns real property, except where the failure to so qualify or be in good standing or full force and effect would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise. (v) The number of issued and outstanding capital shares of the Company is as set forth in the Disclosure Package and the Prospectus under “Capitalization,” and the outstanding capital shares of the Company have been duly authorized, validly issued, and are fully paid and non-assessable. The capital shares of the Company conform to the description thereof contained in the Disclosure Package and the Prospectus. All of the issued and outstanding capital stock of the Company's Significant Subsidiaries have been duly authorized and validly ~~issued and~~ issued, are fully paid and non-assessable and, to the best of such counsel's knowledge, except as ~~otherwise set forth~~ disclosed in the Disclosure Package and the Prospectus, are owned by the Company ~~either directly or through wholly-owned subsidiaries~~ free and clear of any security interest, ~~claim,~~ mortgage, pledge, lien, ~~encumbrance~~ encumbrance, claim or equity, except for such security interests, mortgages, pledges, liens, encumbrances, claims or equities that would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise. NY1 8476991v.3 (vi) Each of this Agreement and any applicable Terms Agreement has been duly authorized, executed and delivered by the Company. (vii) The Shares have been duly and validly authorized by all necessary corporate action and such Shares have been duly authorized for issuance and sale pursuant to this Agreement and any applicable Terms Agreement or any of the Alternative Distribution Agreements and any applicable terms agreement thereunder, as the case may be. Such Shares, when issued and delivered pursuant to this Agreement and any applicable Terms Agreement against payment of the consideration therefor, will be validly issued, fully paid and non-assessable. (viii) The issuance of the Shares will not be subject to any preemptive or other ~~restriction~~ similar rights of any ~~kind, and are subject to no preemptive rights~~ shareholder of the Company arising by operation of law or ~~options arising~~ under the ~~Delaware General Corporation Law~~ charter or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, by-laws of the ~~part of Registration Statement relating~~ Company or, to the ~~Shares for purposes~~ best of ~~the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares~~their knowledge, ~~the Disclosure Package~~ otherwise; and, except as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference set forth in the Disclosure Package and the Prospectus, as no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, capital shares of ~~its respective filing~~ or ~~effective date, appeared on its face to be appropriately responsive~~ ownership interests in the Company are outstanding. (ix) The Shares conform in all material respects to the ~~applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy~~ statements ~~under Regulation 14A, as~~ relating thereto contained in the ~~case may be, under the Exchange Act~~ Disclosure Package and the ~~rules~~ Prospectus; and ~~regulations of~~ the ~~Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or~~ certificates for the ~~financial statements, schedules or other financial data included in, or omitted from, such documents~~Shares are in valid and sufficient form. ~~6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency~~ (x) The Registration Statement is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made effective under the Act ~~(except with respect~~ and, to ~~any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with~~ the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any best of their ~~respective properties or assets may be bound or affected and which have been filed as exhibits to~~ knowledge, no stop order suspending the effectiveness of the Registration Statement ~~or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon~~ has been issued under the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations Act or proceedings ~~pending,~~ therefor initiated or threatened ~~or contemplated to which~~ by the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9Commission. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any Any required filing of the Base Prospectus and the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b)~~; and, based solely on a review of the list of stop orders on the Commission’s website~~ . (~~▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇~~xi) ~~on the date hereof, no stop order suspending the effectiveness of the~~ The Registration Statement and ~~no order directed at any document~~ the Prospectus (other than the documents incorporated by reference therein and the financial statements, related notes and schedules and other financial data and statistical data derived from the financial statements included or incorporated by reference in the Registration Statement or the Prospectus or ~~any amendment~~ omitted therefrom, as to which no opinion need be rendered) as of their respective effective or ~~supplement thereto~~issue dates, ~~has been issued, nor has any proceeding~~ complied as to form in all material respects with the requirements for registration statements on Form S-3 under the ~~purpose been instituted or threatened by~~ Act and the ~~Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance~~rules thereunder. (iixii) ~~In rendering such opinion~~Each document filed pursuant to the Exchange Act (other than the financial statements, ~~such counsel may state that its~~ related schedules and other financial data and statistical data derived from the financial statements included or incorporated by reference therein, as to which no opinion ~~is limited~~ need be rendered) and incorporated or deemed to ~~matters governed~~ be incorporated by reference in the ~~federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California~~ Disclosure Package and the ~~Delaware General Corporation Law~~Prospectus complied when so filed as to form in all material respects with the Exchange Act. ~~Such counsel shall also have furnished~~ NY1 8476991v.3 (xiii) To the best of their knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the ~~Manager~~Prospectus, ~~on every date specified in Section 4(l) of this Agreement~~other than those disclosed therein, ~~a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager~~and, to the ~~effect~~ best of their knowledge, all pending legal or governmental proceedings to which the Company or its Significant Subsidiaries is a party or of which any of the property of the Company or its subsidiaries is the subject that ~~(x) such counsel has acted as counsel~~ are not described in the Registration Statement, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material to the business of the Company and its subsidiaries considered as one enterprise. (xiv) To the best of their knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Registration Statement or to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto, and the descriptions thereof or references thereto are correct in all material respects. (xv) No authorization, approval or consent of any court or governmental authority or agency is required that has not been obtained in connection with the ~~preparation~~ consummation by the Company of the transactions contemplated by this Agreement or any applicable Terms Agreement, except such as may be required under the Act, the Exchange Act, and state securities laws or blue sky laws or real estate syndication laws; and to the best of their knowledge, the execution and delivery of this Agreement and any applicable Terms Agreement and the consummation of the transactions contemplated herein and therein and compliance by the Company with its obligations hereunder and thereunder will not (A) constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Significant Subsidiary pursuant to, any contract, indenture, mortgage, loan agreement, note, lease or other instrument that is filed or incorporated by reference as an exhibit to the Registration Statement to which the Company or any Significant Subsidiary is a party or by which they are bound or to which any of the property or assets of the Company or any Significant Subsidiary is subject, except (i) where such breach, default, creation or imposition would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise and (ii) that such counsel expresses no opinion with respect to compliance with financial covenants or tests, or (B) result in a violation of the provisions of any administrative or court order or decree to which the Company or any of its subsidiaries is subject and which is known to such counsel, the charter or by-laws or other organizational document of the Company or any Significant Subsidiary or any applicable law or administrative regulation. (xvi) Neither the Company nor any Significant Subsidiary is, or will be immediately after the consummation of the transactions contemplated by this Agreement and any applicable Terms Agreement, required to be registered under the Investment Company Act. NY1 8476991v.3 (xvii) The information in the Disclosure Package, the Prospectus and the Prospectus Supplement under the captions “Description of Common Shares,” “Certain Anti-Takeover Provisions,” “Certain Federal Income Tax Considerations” and “Supplemental United States Federal Income Tax Considerations,” to the extent that it constitutes matters of law or legal conclusions, has been reviewed by them and is correct in all material respects. (xviii) The Company has qualified as a REIT for each of its taxable years ended December 31, 1993 through 2011 and the Company is organized in conformity with the requirements for qualification as a REIT, and the Company's current and proposed method of operation will enable it to continue to meet the requirements for qualification and taxation as a REIT under the Code for its taxable year ending December 31, 2012 and for future taxable years. (xix) No holders of securities of the Company have rights to the registration of such securities under the Registration Statement. In addition, such counsel shall state that they have examined various documents and records and participated in conferences with officers and other representatives of the Company, representatives of the Accountants and with representatives of the Manager at which the contents of the Registration Statement, the Disclosure Package and the ~~Prospectus~~ Prospectus, and ~~has reviewed~~ any supplements or amendments thereto, and related matters were discussed and, although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package or the Prospectus, including the documents incorporated by reference therein (other than as specified above), and ~~(y) subject to the foregoing, such counsel confirms that~~any supplements or amendments thereto, on the basis of the ~~information gained in the course of performing the services referred to therein~~foregoing, ~~nothing~~ no facts came to ~~such counsel’s~~ their attention that ~~leads such counsel~~ caused them to believe that (i) the Registration ~~Statement~~Statement or any amendments thereto, on as of the most recent deemed effective ~~date,~~ date pursuant to Rule 430B(f)(2) ~~under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11~~ of the Act ~~in connection with~~ prior to the ~~sale~~ delivery of ~~the Shares~~such opinion, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the ~~Prospectus~~Disclosure Package, as ~~of its date, and as of~~ amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained ~~or contains any~~ an untrue statement of a material fact or omitted ~~or omits~~ to state ~~any~~ a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the ~~Disclosure Package~~Prospectus, as ~~amended~~ of its date or ~~supplemented~~ at the ~~Execution Time or at any applicable date related to the delivery of such opinion~~relevant Representation Date, contained ~~any~~ an untrue statement of a material fact or omitted 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; provided~~misleading (in each case, ~~however, such counsel is not passing upon and does not (a) assume any responsibility for~~ other than the ~~accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package~~ Form T-1 and the ~~Prospectus (except as~~ financial statements, related notes and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial data and statistical data derived from the financial statements included or incorporated by reference ~~in,~~ therein or omitted ~~from~~therefrom, ~~the Registration Statement, the Disclosure Package or the Prospectus~~as to which such counsel need express no statement). References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement ~~Date~~Date or Time of Delivery, as applicable. With respect to statements contained in the Disclosure Package, any statement contained in any of the constituent documents shall be deemed to be modified or superseded to the extent NY1 8476991v.3 that any information contained in subsequent constituent documents modifies or replaces such statement. (c) The ~~Company~~ Manager shall have ~~requested and caused Maryland Counsel to furnish to~~ received from Sidley Austin LLP, counsel for the Manager, on every date specified in Section 4(m) of this Agreement, ~~its opinion~~such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the ~~effect that:~~ issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (itogether with any supplement thereto) ~~The~~ and other related matters as the Manager may reasonably require, and the Company ~~has been duly incorporated and is validly existing~~ shall have furnished to such counsel such documents as ~~a corporation in good standing under~~ they request for the purpose of enabling them to pass upon such matters. In giving their opinions, Sidley Austin LLP may rely as to matters involving the laws of the State of ~~Maryland. (ii) The~~ Ohio upon the opinion of Company ~~has the corporate power~~ Counsel, and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms Counsel may rely as to ~~legal~~ matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to involving the laws of the State of ~~Maryland~~New York upon the opinion of Sidley Austin LLP. Company Counsel and Sidley Austin LLP may rely (i) as to the qualification of the Company or its subsidiaries to do business in any state or jurisdiction, ~~and Maryland Counsel need express no opinion with respect to any federal~~ upon certificates of appropriate government officials, telephonic confirmation by representatives of such states or ~~state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii)~~ confirmation from information contained on the websites of such states and (ixii) ~~above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws~~ as to ~~which Maryland Counsel need express no opinion)~~matters of fact, ~~if any,~~ upon certificates and ~~those approvals, authorizations, consents, orders~~ written statements of officers and employees of and accountants for the Company or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreementits subsidiaries. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the ~~Chief Executive Officer~~ Chairman of the Board or the President and the principal financial or accounting officer ~~of the Company, on behalf~~ of the Company, dated as of such date, to the effect that the signers of such certificate have carefully examined the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the representations and warranties of the Company in this Agr

Appears in 1 contract

Sources: Equity Distribution Agreement (Associated Estates Realty Corp)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the ~~Company~~ Partnership contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the ~~Company~~ Partnership of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Offered Units; each Interim Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 3(a)(ix) of this Agreement; any ~~other~~ material required to be filed by the ~~Company~~ Partnership pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The ~~Company~~ Partnership shall have requested and caused ~~the Company Counsel~~ ▇▇▇▇▇ ▇▇▇▇▇, to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to in substantially the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise form set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement DateExhibit A hereto. (c) The ~~Company~~ Partnership shall have requested and caused ~~Maryland Counsel~~ GableGotwals, to furnish to the Manager, on every date specified in Section ~~4(m~~4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to in substantially the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as form set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution AgreementExhibit B hereto. (d) The ~~Company~~ Partnership shall have requested and caused ~~Tax Counsel~~ ▇▇▇▇▇▇▇ ▇▇▇▇▇, to furnish to the Manager, on every date specified in Section ~~4(n~~4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, ~~and~~ in substantially the form as set forth on in Exhibit A.C hereto. (e) The ~~Company~~ Manager shall have received from Shearman & Sterling, counsel for the Manager, on every date specified in Section 4(m) of this Agreement, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Offered Units, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Partnership shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. (f) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any adverse change, or any development involving a prospective adverse change, in or affecting the business, properties, earnings, results of operations or financial condition of the Partnership and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Offered Units as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto). (g) The Partnership shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the ~~Company~~Partnership, signed by the Chairman of the Board and Chief Executive Officer or the President and the principal financial or accounting officer of the ~~Company, on behalf~~ General Partner of the ~~Company~~Partnership, dated as of such date, to the effect that the signers of such certificate have ~~examined~~ reviewed the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the representations and warranties of the Partnership in Section 1 of this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Partnership’s knowledge, threatened; and (iii) since the date of the most recent financial statements included in the Disclosure Package, there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus. (h) The Partnership shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(n) hereof, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, which letters shall cover certain financial statements and financial information contained in the Registration Statement, the Interim Prospectus Supplements, the Prospectus and the Permitted Free Writing Prospectuses, if any. (i) The Partnership shall have paid the required Commission filing fees relating to the Offered Units within the time period required by Rule 456(b)(1)(i) of the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b). (j) Between the Execution Time and the time of any sale of Offered Units through the Manager, there shall not have been any decrease in the rating of any of the Partnership’s debt securities by any “nationally recognized statistical rating organization” (as such term is defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. (k) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (l) The Offered Units shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager. (m) Prior to each Settlement Date and Time of Delivery, as applicable, the Partnership shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Partnership in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Shearman & Sterling, counsel for the Manager, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, on each such date as provided in this Agreement.

Appears in 1 contract

Sources: Equity Distribution Agreement (ONEOK Partners LP)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the ~~Company~~ DCP Parties contained herein as of the Execution ~~Time,~~ Time and each Representation Date, ~~and as of each Applicable Time, Settlement Date and Time of Delivery,~~ (ii) to the performance by the ~~Company~~ DCP Parties of ~~its~~ their obligations ~~hereunder~~ hereunder, and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Units; any other material required to be filed by the ~~Company~~ Partnership pursuant to Rule 433(d) under the ~~Act,~~ Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The ~~Company~~ Partnership shall have requested and caused the ~~Company~~ Partnership Counsel to furnish to the Manager, on every ~~date specified in Section 4(l) of this Agreement~~Representation Date, its opinion, dated as of such date and addressed to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the ~~Manager,~~ Manager to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Dateon Exhibit B hereto. (c) The ~~Company~~ Manager shall have ~~requested~~ received from ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President, General Counsel and ~~caused Maryland Counsel~~ Secretary of DCP Midstream GP, LLC, on every Representation Date, his opinion dated as of such date, in form and substance satisfactory to ~~furnish~~ the Manager to the effect set forth on Exhibit C hereto. (d) The Manager shall have received from ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Manager, on every ~~date specified in Section 4(m) of this Agreement~~Representation Date, its ~~opinion~~opinion or opinions, dated as of such date and addressed to the Manager, with respect to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the ~~Shares by~~ Units, the ~~Company~~ Registration Statement, the Prospectus (together with any supplement thereto) and ~~consummation of the transactions contemplated by this Agreement,~~ other ~~than such as have been obtained or made,~~ related matters as the ~~case~~ Manager may ~~be. (ix) The execution~~reasonably require, ~~delivery and performance of this Agreement by the Company~~ and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreement. (d) The Company Partnership shall have ~~requested and caused Tax Counsel~~ furnished to ~~furnish~~ such counsel such documents as they request for the purpose of enabling them to ~~the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of~~ pass upon such ~~date and addressed to the Manager, and in form as set forth on Exhibit A.~~matters. (e) The ~~Company~~ Partnership shall have ~~furnished or caused to be~~ furnished to the Manager, on every ~~date specified in Section 4(k) of this Agreement~~Representation Date, a certificate of the ~~Company~~Partnership, signed on behalf of the Partnership by the ~~Chief Executive Officer~~ Chairman of the Board or the President and the ~~principal financial or accounting officer~~ Chief Financial Officer of ~~the Company~~DCP Midstream GP, ~~on behalf of the Company~~LLC, dated as of such date, to the effect that the signers of such certificate have carefully examined the ~~Registra~~Registration Statement and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the representations and warranties of each of the DCP Parties in this Agreement are true and correct on and as of such date with the same effect as if made on such date and each of the DCP Parties has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Partnership’s knowledge, threatened; and (iii) since the date of the most recent financial statements included in the Prospectus, there has been no material adverse effect on the condition (financial or otherwise), results of operations, prospects, earnings, business or properties of the Partnership Entities and Operating Subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto). (f) The Partnership shall have requested and caused Deloitte & Touche LLP to have furnished to the Manager, on every date specified in Section 4(m) hereof and to the extent requested by the Manager in connection with any offering of the Units, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager (i) confirming that such firm is an independent registered public accounting firm within the meaning of the Act, the Rules and Regulations and the rules of the PCAOB, (ii) stating, as of the date of such letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Prospectus Supplement, as of a date not more than three days prior to the date of such letter), the conclusions and findings of such firm with respect to the financial information and (iii) covering such other matters as are ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings. (g) The Partnership shall have requested and caused Ernst & Young LLP to have furnished to the Manager, on every date specified in Section 4(m) hereof and to the extent requested by the Manager in connection with any offering of the Units, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager (i) confirming that such firm is an independent registered public accounting firm within the meaning of the Act, the Rules and Regulations and the rules of the PCAOB, (ii) stating, as of the date of such letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Prospectus Supplement, as of a date not more than four Business Days prior to the date of such letter), the conclusions and findings of such firm with respect to the financial information, and (iii) covering such other matters as are ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings. (h) The Partnership shall have requested and caused UHY LLP to have furnished to the Manager, on every date specified in Section 4(m) hereof and to the extent requested by the Manager in connection with any offering of the Units, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager (i) confirming that such firm is an independent registered public accounting firm within the meaning of the Act and the Rules and Regulations and (ii) covering such other matters as are ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings. (i) Since the date of the latest audited financial statements included in the Prospectus, (i) none of the Partnership Entities shall have sustained any loss or interference with its business from fire, explosion, flood or other calamity, whether or not covered by insurance, or from any labor dispute or court or governmental action, order, investigation or decree, otherwise than as set forth or contemplated in the Prospectus, or shall have become a party to or the subject of any litigation, court or governmental action, investigation, order or decree that is materially adverse to the Partnership Entities, taken as a whole, and (ii) there shall not have been any change in the capitalization or increase in short-term or long-term debt of any of the Partnership Entities or any change, or any development involving a prospective change, in or affecting the general affairs, management, condition (financial or otherwise), stockholders’ equity, partners’ equity, members’ equity, results of operations, properties, business or prospects of the Partnership Entities, except as set forth in or contemplated in the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Units as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto). (j) Between the Execution Time and any Time of Delivery, there shall not have been any decrease in the rating of any of the Partnership’s debt securities by any “nationally recognized statistical rating organization” (as that term is used in Section 15E of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. (k) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement or any Terms Agreement. (l) The NYSE shall have approved the Units for listing, subject only to official notice of issuance. (m) The Partnership shall have furnished to the Manager at each Representation Date such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Partnership in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Holland & ▇▇▇▇ LLP, counsel for the DCP Parties, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, or electronically if agreed to by the parties, on each such date as provided in this Agreement.

Appears in 1 contract

Sources: Equity Distribution Agreement (DCP Midstream Partners, LP)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company and the Partnership contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 3(a)(viii) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been 32 filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The Company shall have requested and caused the Company ~~Counsel~~ Counsel, to furnish to the Manager, on every date specified in Section ~~4(l~~4(k) of this Agreement, ~~its opinion, dated as~~ an opinion of ~~such date and~~ Company Counsel addressed to the ~~Manager, to~~ Manager in the ~~effect that: 1. Based solely on certificates~~ form of ~~public officials, (i) each of the Company~~ Exhibits A-1 and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may beA-2, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (letter from ▇▇▇.▇▇~~▇.▇▇▇/~~▇ & ▇▇▇▇▇▇▇~~▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof~~▇ LLP, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished addressed to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the ~~course~~ form of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement DateExhibit A-3. (c) The Company shall have requested and caused ~~Maryland Counsel~~ Senior Corporate Counsel, to furnish to the Manager, on every date specified in Section ~~4(m~~4(k) of this Agreement, ~~its opinion, dated as~~ an opinion of ~~such date and~~ Senior Corporate Counsel addressed to the Manager, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described Manager in the ~~Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock~~ form of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreement.Exhibit B (d) The Company shall have requested and caused ~~Tax Counsel~~ Senior Corporate Counsel, to furnish to the Manager, on every date specified in Section ~~4(n~~4(k) of this Agreement, ~~its opinion~~an opinion of Maryland Counsel addressed to the Manager in the form of Exhibit C. (e) The Manager shall have received on every date specified in Section 4(k) of this Agreement, the favorable opinion of Clifford Chance US LLP, counsel for the Managers, dated as of such date and addressed to the Manager~~, and in form as set forth on Exhibit A.~~. (ef) The Company and the Partnership shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this ~~Agreement~~Agreement a certificate of its Chief Financial Officer and its Chief Accounting Officer, in the case of the Company, and of its general partner, in the case of the Partnership, in the form attached as Exhibit D hereto. The Managers shall have received from the Company and the Partnership on every date specified in Section 4(k), a certificate of its Chief Financial Officer and its Chief Accounting Officer, in the ~~Company, signed by the Chief Executive Officer or the President and the principal financial or accounting officer~~ case of the Company, and its general partner, in the case of the Partnership, in the form attached as Exhibit E hereto (g) The Company shall have requested and caused the Accountants to have furnished to the Manager, on ~~behalf~~ every date specified in Section 4(n) hereof and to the extent requested by the Manager in connection with any offering of the Shares, a comfort letter addressed to the Managers in the form and substance satisfactory to the Managers. (h) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall have been no material adverse change or any development reasonably expected to result in a material adverse change in the business, properties, management, financial condition or results of operations of the Company, ~~dated~~ the Partnership and the Subsidiaries taken as a whole shall occur or become known the effect of which, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto). 33 (i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post‑effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b). (j) No Prospectus or amendment or supplement to the Registration Statement or the Prospectus shall have been filed to which the Manager objects in writing (k) Between the Execution Time and the time of any sale of Shares through the Manager, (i) no stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings initiated under Section 8(d) or 8(e) of the Securities Act; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) the Prospectus and amendments or supplements thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (v) none of the Issuer Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading. (l) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (m) The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such ~~date,~~ actions shall have been provided to the ~~effect that~~ Manager. (n) The Articles Supplementary shall have been accepted for record by the ~~signers~~ MSDAT and shall be effective under the Maryland REIT Law. (o) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such ~~certificate have examined~~ cancellation shall be given to the ~~Registra~~Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Clifford Chance US LLP, counsel for the Manager, at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on each such date as provided in this Agreement.

Appears in 1 contract

Sources: Equity Distribution Agreement (Hersha Hospitality Trust)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of ~~Delivery~~Delivery (except to the extent such representations and warranties expressly relate to the specific earlier date (in which case such representations and warranties shall be true and correct as of such specified earlier date)), (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(x) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ LLP, outside counsel for the Company, to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its letter, dated as of such date and addressed to the Manager, to the effect that the Registration Statement and the Prospectus (other than the financial statements and other financial, accounting and statistical information contained or incorporated by reference in the Registration Statement or the Prospectus, as to which such counsel need not provide negative assurance) comply as to form in all material respects with the applicable requirements of the Act and the Exchange Act and the respective rules thereunder; and such counsel has no reason to believe that on the Effective Date the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus as of its date and as of the date of such letter included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial or accounting information contained or incorporated by reference in the Registration Statement or the Prospectus, as to which such counsel need not provide negative assurance); such counsel has no reason to believe that the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such letter, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than the financial statements and other financial or accounting information contained or incorporated by reference in the Disclosure Package, as to which such counsel need not provide negative assurance). (c) The Company ~~Counsel~~ shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ LLP, outside counsel for the Company, to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: ~~1. Based solely on certificates of public officials,~~ (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became has become effective under the Act; any required filing of the Base Prospectus and the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); ~~and, based solely on a review~~ to the knowledge of ~~the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof~~such counsel, no stop order suspending the effectiveness of the Registration Statement ~~and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus~~ or any ~~amendment or supplement thereto,~~ notice objecting to its use has been issued, ~~nor has any proceeding~~ no proceedings for ~~the~~ that purpose have been instituted or ~~threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance.~~threatened; (ii) based solely on its review of a certificate from the Secretary of State of the State of Delaware, the Company is validly existing and in good standing under the laws of the State of Delaware; (iii) the Company has the corporate power and authority under the Delaware General Corporation Law (“DGCL”) to conduct its business as described in the Disclosure Package and the Prospectus; (iv) the Company has the corporate power and authority to execute and deliver the Agreement and to consummate the transactions contemplated thereby under the DGCL; (v) this Agreement has been duly authorized, executed and delivered by the Company; (vi) neither the execution and delivery by the Company of this Agreement nor the consummation of the transactions contemplated hereby, including the issuance and sale of the Shares: (A) conflicts with its charter or bylaws or (B) constitutes a violation of, or a default under, any of the agreements that are listed on a schedule to such opinion; (vii) neither the execution and delivery by the Company of this Agreement nor the consummation by the Company of the transactions contemplated hereby, including the issuance and sale of the Shares: (A) violates any law, rule or regulation of the State of New York or the United States of America, or the DGCL; provided that no opinion shall be expressed as to federal or state securities laws other than as set forth in paragraph (i) above or (B) requires the consent, approval, licensing or authorization of, or any filing, recording or registration with, any governmental authority under any law, rule or regulation of the State of New York or the United States of America, or the DGCL, except for those consents, approvals, licenses and authorizations already obtained and those filings, recordings and registrations already made or as may be required under federal or state securities or Blue Sky laws as to which we express no opinion; (viii) the Company is not and, solely after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the Disclosure Package, will not be an “investment company” as such term is defined in the Investment Company Act of 1940, as amended; (ix) the Shares conform to the description thereof contained in the Disclosure Package and the Base Prospectus under the caption “Description of Capital Stock”; and (x) the Company’s authorized equity capitalization is as set forth in the Disclosure Package and the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Shares have been duly and validly authorized, and, when issued and delivered to and paid for by the Manager pursuant to this Agreement and any Terms Agreement, will be fully paid and nonassessable; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares. In rendering such opinion, such counsel may ~~state that its opinion is limited~~ rely (A) as to matters ~~governed by~~ involving the ~~federal~~ application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United ~~States~~ States, to the extent they deem proper and specified in such opinion, upon the opinion of ~~America~~other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Manager and (B) as to matters of fact, to the ~~internal laws~~ extent they deem proper, on certificates of responsible officers of the ~~State of New York~~Company and public officials. References to the Prospectus in paragraph (b) and this paragraph (c) shall also include any supplements thereto at the Settlement Date. (d) The Company shall have requested and caused ▇▇▇▇▇▇ ▇▇▇▇▇, ~~the internal laws~~ general counsel of the ~~State of California and the Delaware General Corporation Law. Such counsel shall also have furnished~~ Company, to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The Company shall have requested and caused Maryland Counsel to furnish to the Manager, on every date specified in Section 4(m) of this Agreement, its her opinion, dated as of such date and addressed to the Manager, to the effect that: (i) ~~The~~ based solely on her review of the copies of certificates from public officials in the state of incorporation or formation of each subsidiary of the Company ~~has been duly incorporated and~~ listed on a schedule to her opinion, each such subsidiary is a corporation or limited liability company validly existing ~~as a corporation~~ and in good standing under the laws of the ~~State~~ state of ~~Maryland.~~its incorporation or formation, as applicable, listed opposite its name on such schedule; to her knowledge, there are no legal or governmental proceedings pending to which the Company is a party or to which any of it property is subject, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and (ii) ~~The~~ based solely on her review of the copies of certificates from public officials in each state in which the Company ~~has~~ is required to qualify as a foreign corporation, the ~~corporate power~~ Company is duly qualified as a foreign corporation to transact business and ~~authority to own or lease its properties, to conduct its business as described~~ is in ~~the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement~~good standing in each such state. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreement. (de) The Company shall have requested and caused ~~Tax Counsel~~ ▇▇▇▇▇▇ ▇▇▇▇▇, general counsel of the Company, with respect to state regulatory matters, to furnish to the Manager, on every date specified in Section ~~4(n~~4(l) of this Agreement, ~~its~~ her opinion, dated as of such date and addressed to the Manager, ~~and in form as set forth on Exhibit A.~~to the effect that: (ei) ~~The~~ each of the Company ~~shall have furnished~~ and its subsidiaries validly holds all Authorizations necessary or ~~caused~~ required under Applicable Laws for the Company and its subsidiaries to conduct their business as currently conducted and as proposed to be ~~furnished~~ conducted, including the incumbent local exchange services, competitive local exchange services, long distance service, dial-up and DSL internet access and other communication services provided by the Company and its subsidiaries (the “Company Authorizations”) except where the absence of such Company Authorizations will not have a Material Adverse Effect on the Company; except as would not be material to ~~the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of~~ the Company, ~~signed by~~ the ~~Chief Executive Officer~~ Company Authorizations are in full force and effect and I have no reason to believe that the Company Authorizations will not be renewed in the ordinary course. As used herein, (1) “Authorization” means any certificate, concession, cable and other franchise, consent, exemption, order, permit, license, authorization or ~~the President~~ other approval of and ~~the principal financial or accounting officer~~ from a Governmental Authority; (2) “Applicable Law” means any of the ~~Company~~statutes, rules, regulations, policies, orders, court or administrative agency decisions and interpretations, or other laws of a Governmental Authority, including, without limitation, communications and environmental laws and regulations; provided that “Applicable Law” shall not include any federal or state securities laws or tax laws and (3) “Governmental Authority” means all applicable state, local and other governmental authorities (including the Public Utility Commission thereof), all self-regulatory governmental organizations, all cable franchising authorities and all courts and other tribunals in the states listed on ~~behalf of~~ a schedule to such opinion that have jurisdiction over the ~~Company, dated as of such date, to the effect that the signers of such certificate have examined the Registra~~Company and its subsidiaries;

Appears in 1 contract

Sources: Equity Distribution Agreement (Windstream Holdings, Inc.)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of AMC Preferred Equity Units; each Interim Prospectus Supplement, if any, shall have been filed in the manner required by Rule 424(b) within the time period required by Section 3(a)(ix) of this Agreement; any ~~other~~ material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The Company shall have requested and caused the Company ~~Counsel~~ Counsel, to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its opinion, ~~dated as of such date~~ in form and addressed to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not substance reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed satisfactory to the Manager and ~~dated as of such date, in form and substance satisfactory to~~ counsel for the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The ~~Company~~ Manager shall have ~~requested and caused Maryland Counsel to furnish to~~ received from L▇▇▇▇▇ & W▇▇▇▇▇▇ LLP, counsel for the Manager, on every date specified in Section 4(m) of this Agreement, ~~its opinion~~such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the ~~Shares by~~ AMC Preferred Equity Units, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company ~~and consummation~~ shall have furnished to such counsel such documents as they reasonably request for the purpose of ~~the transactions contemplated by this Agreement, other than~~ enabling them to pass upon such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreementmatters. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the President or Chief Executive Officer ~~or the President~~ and the principal financial or accounting officer ~~of the Company, on behalf~~ of the Company, dated as of such date, to the effect that the signers of such certificate have carefully examined the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (iii) since the date of the most recent financial statements included in the Disclosure Package, there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus. (e) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(n) hereof and to the extent requested by the Manager in connection with any offering of the AMC Preferred Equity Units, letters (which may refer to letters previously delivered to the Manager), dated as of such date in form and substance reasonably satisfactory to the Manager containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus. (f) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package, the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the AMC Preferred Equity Units as contemplated by the Registration Statement, the Disclosure Package and the Prospectus. (g) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(o) of this Agreement, a certificate, signed by the Chief Financial Officer of the Company, dated as of such date, providing “management comfort” with respect to certain financial data included or incorporated by reference in the Disclosure Package and the Prospectus. (h) The Company shall have paid the required Commission filing fees relating to the AMC Preferred Equity Units within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b). (i) Between the Execution Time and the time of any sale of AMC Preferred Equity Units through the Manager, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. (j) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (k) The AMC Preferred Equity Units shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager. (l) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the applicable Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of L▇▇▇▇▇ & W▇▇▇▇▇▇ LLP, counsel for the Manager, at 1▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on each such date as provided in this Agreement.

Appears in 1 contract

Sources: Equity Distribution Agreement (Amc Entertainment Holdings, Inc.)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: ~~(a)~~ 6.1 The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; any ~~other~~ material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or or, to the knowledge of the Company, threatened. ~~(i)~~ 6.2 The Company shall have ~~requested and~~ furnished or caused the Company Counsel to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be ~~so qualified~~ furnished the opinions and ~~in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company~~ letters from its counsel and ~~its Subsidiaries, taken~~ accountants as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. Section 4~~. The Registration Statement~~, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under dates as set forth in Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable4. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as 6.3 The Manager shall have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/received from ▇▇▇▇▇▇ & ▇▇▇▇▇~~/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof~~▇ L.L.P., no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding counsel for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The Company shall have requested and caused Maryland Counsel to furnish to the Manager, on every date specified in Section 4(m) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in Section 4.21, on the ~~Disclosure Package~~ dates as set forth in Section 4, and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreement. (d) The Company shall have ~~requested and caused Tax Counsel~~ furnished to ~~furnish~~ such counsel such documents as they request for the purpose of enabling them to ~~the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of~~ pass upon such ~~date and addressed to the Manager, and in form as set forth on Exhibit A.~~matters. ~~(e)~~ 6.4 The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section ~~4(k)~~ 4.11 of this Agreement, a certificate ~~of the Company, signed~~ by ~~the Chief Executive Officer~~ its principal executive officer or ~~the President and the~~ principal financial ~~or accounting~~ officer ~~of the Company, on behalf of the Company,~~ dated as of such date, to the effect that the ~~signers~~ signer of such certificate ~~have~~ has carefully examined the ~~Registra~~Registration Statement and the Prospectus and any supplements or amendments thereto and this Agreement and that: a) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; b) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued by the Commission and no proceedings for that purpose have been instituted or, to such officer’s knowledge, threatened; c) since the date of the most recent financial statements included in the Prospectus, there has been no material adverse effect on the general affairs, condition (financial or otherwise), results of operations, business, properties, assets or prospects of the Teekay Entities, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus, as amended or supplemented; and d) on those Representation Dates when the opinions referred to in Section 4.15 through Section 4.19 are not provided, that, to such officer’s knowledge, there has not been any material change in the facts on which the opinions in Section 4.15 through Section 4.19 are based. 6.5 The Company shall have requested and caused KPMG LLP to have furnished to the Manager, on every date specified in Section 4.21 hereof and to the extent reasonably requested by the Manager in connection with any offering of the Shares a comfort letter, dated respectively as of such date, in form and substance reasonably satisfactory to the Manager. 6.6 Subsequent to the respective dates as of which information is disclosed in the Registration Statement and the Prospectus, except as otherwise stated therein, there shall not have been (i) any adverse change or decrease specified in the letter referred to in Section 6.5 or (ii) any adverse change, or any development involving a prospective adverse change that would reasonably be expected to have a Material Adverse Effect, which, in the Manager’s opinion, would materially and adversely affect the market for Shares. 6.7 Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. 6.8 FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. 6.9 The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager. 6.10 Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered to the office of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Manager, at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or electronically to ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P. at an address provided by it to the Company or its counsel, on each such date as provided in this Agreement.

Appears in 1 contract

Sources: Equity Distribution Agreement (Teekay Corp)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: ~~(a)~~ 6.1 The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission shall have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; any ~~other~~ material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or or, to the knowledge of the Company, threatened. ~~(i)~~ 6.2 The Company shall have ~~requested and~~ furnished or caused the Company Counsel to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be ~~so qualified~~ furnished the opinions and ~~in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company~~ letters from its counsel and ~~its Subsidiaries, taken~~ accountants as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. Section 4~~. The Registration Statement~~, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under dates as set forth in Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable4. ~~5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus~~6.3 The Manager shall have received from Cravath, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/Swaine & ▇▇▇▇~~▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof~~▇ LLP, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding counsel for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The Company shall have requested and caused Maryland Counsel to furnish to the Manager, on every date specified in Section 4(m) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in Section 4, on the ~~Disclosure Package~~ dates as set forth in Section 4, and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreement. (d) The Company shall have ~~requested and caused Tax Counsel~~ furnished to ~~furnish~~ such counsel such documents as they request for the purpose of enabling them to ~~the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of~~ pass upon such ~~date and addressed to the Manager, and in form as set forth on Exhibit A.~~matters. ~~(e)~~ 6.4 The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section ~~4(k)~~ 4.13 of this Agreement, a certificate ~~of the Company, signed~~ by ~~the Chief Executive Officer or the President~~ its principal executive officer and ~~the~~ principal financial ~~or accounting~~ officer ~~of the Company, on behalf of the Company,~~ dated as of such date, to the effect that the ~~signers~~ signer of such certificate ~~have~~ has carefully examined the ~~Registra~~Registration Statement and the Prospectus and any supplements or amendments thereto and this Agreement and that: (a) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; (b) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued by the Commission and no proceedings for that purpose have been instituted or, to such officer’s knowledge, threatened; (c) since the date of the most recent financial statements included in the Prospectus, there has been no material adverse effect on the general affairs, condition (financial or otherwise), results of operations, business, properties, assets or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto); and (d) on those Representation Dates when the opinions referred to in Sections 4.16, 4.18 and 4.19 are not provided, that, to such officer’s knowledge, there has not been any material change in the facts on which the opinions in Sections 4.16, 4.18 and 4.19 are based. 6.5 The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4.21 hereof and to the extent reasonably requested by the Manager in connection with any offering of the Shares, comfort letters, dated respectively as of such date, in form and substance reasonably satisfactory to the Manager. 6.6 Subsequent to the respective dates as of which information is disclosed in the Registration Statement and the Prospectus, except as otherwise stated therein, there shall not have been (i) any adverse change or decrease specified in the letter or letter referred to in Sections 6.5 or (ii) any adverse change, or any development involving a prospective adverse change that would reasonably be expected to have a Material Adverse Effect, which, in the Manager’s opinion, would materially and adversely affect the market for Shares. 6.7 Since the date of the most recent financial statements included in the Prospectus, there shall not have been any decrease in the rating of any of the debt securities of the Company by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. 6.8 FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. 6.9 The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager. 6.10 Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered to the office of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Manager, at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, or electronically to Cravath, Swaine & ▇▇▇▇▇ at an address provided by it to the Company or its counsel, on each such date as provided in this Agreement.

Appears in 1 contract

Sources: Equity Distribution Agreement (Teekay Tankers Ltd.)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; any ~~other~~ material required to be filed by the Company pursuant to Rule 433(d) ~~under~~ of the ~~Act,~~ Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The Company shall have requested and caused the Company Counsel to NY18477005 furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: ~~1. Based solely on certificates of public officials,~~ (i) ~~each of the~~ The Company has been duly organized and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a ~~corporation,~~ corporation in good standing under the laws of the State of ~~Delaware, with~~ Ohio. (ii) The Company has all requisite corporate power and authority to ~~own or lease~~own, ~~as the case may be,~~ lease and operate its properties and to conduct its business as described in the Disclosure Package and the ~~Prospectus,~~ Prospectus and to enter into and perform its obligations under this Agreement and any applicable Terms Agreement. (iii) The Company is duly qualified to transact business and is in good standing in each jurisdiction in which it owns real property except where the failure to qualify and be ~~so qualified and~~ in good standing would not ~~reasonably be expected to~~ have a material adverse effect on the ~~business~~condition, financial ~~condition~~or otherwise, ~~results of operations~~or on the earnings, ~~management, properties~~ business affairs or business prospects of the Company and its ~~Subsidiaries~~subsidiaries considered as one enterprise. (iv) If the Company has one or more significant subsidiaries, ~~taken~~ as defined in Rule 405 of the Act (each, a “Significant Subsidiary”), each Significant Subsidiary has been duly incorporated or formed and is validly existing as a ~~whole. 3. The issued~~ corporation, partnership, limited liability company or real estate investment trust in good standing or in full force and ~~outstanding shares of capital stock or other ownership interests of each Subsidiary formed~~ effect, as the case may be, under the laws of the ~~State~~ jurisdiction of ~~Delaware~~ its incorporation or formation, has corporate, partnership, limited liability company or real estate investment trust power and authority to own, lease and operate its properties and to conduct its business, and is duly qualified as a foreign corporation, partnership, limited liability company or real estate investment trust to transact business and is in good standing or full force and effect, as the case may be, in each jurisdiction in which it owns real property, except where the failure to so qualify or be in good standing or full force and effect would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise. (v) The number of issued and outstanding capital shares of the Company is as set forth in the Disclosure Package and the Prospectus under “Capitalization,” and the outstanding capital shares of the Company have been duly authorized, validly issued, and are fully paid and non-assessable. The capital shares of the Company conform to the description thereof contained in the Disclosure Package and the Prospectus. All of the issued and outstanding capital stock of the Company's Significant Subsidiaries have been duly authorized and validly ~~issued and~~ issued, are fully paid and non-assessable and, to the best of such counsel's knowledge, except as ~~otherwise set forth~~ disclosed in the Disclosure Package and the Prospectus, are owned by the Company ~~either directly or through wholly-owned subsidiaries~~ free and clear of any security interest, ~~claim,~~ mortgage, pledge, lien, ~~encumbrance~~ encumbrance, claim or equity, except for such security interests, mortgages, pledges, liens, encumbrances, claims or equities that would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise. NY18477005 (vi) Each of this Agreement and any applicable Terms Agreement has been duly authorized, executed and delivered by the Company. (vii) The Shares have been duly and validly authorized by all necessary corporate action and such Shares have been duly authorized for issuance and sale pursuant to this Agreement and any applicable Terms Agreement or any of the Alternative Distribution Agreements and any applicable terms agreement thereunder, as the case may be. Such Shares, when issued and delivered pursuant to this Agreement and any applicable Terms Agreement against payment of the consideration therefor, will be validly issued, fully paid and non-assessable. (viii) The issuance of the Shares will not be subject to any preemptive or other ~~restriction~~ similar rights of any ~~kind, and are subject to no preemptive rights~~ shareholder of the Company arising by operation of law or ~~options arising~~ under the ~~Delaware General Corporation Law~~ charter or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, by-laws of the ~~part of Registration Statement relating~~ Company or, to the ~~Shares for purposes~~ best of ~~the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares~~their knowledge, ~~the Disclosure Package~~ otherwise; and, except as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference set forth in the Disclosure Package and the Prospectus, as no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, capital shares of ~~its respective filing~~ or ~~effective date, appeared on its face to be appropriately responsive~~ ownership interests in the Company are outstanding. (ix) The Shares conform in all material respects to the ~~applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy~~ statements ~~under Regulation 14A, as~~ relating thereto contained in the ~~case may be, under the Exchange Act~~ Disclosure Package and the ~~rules~~ Prospectus; and ~~regulations of~~ the ~~Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or~~ certificates for the ~~financial statements, schedules or other financial data included in, or omitted from, such documents~~Shares are in valid and sufficient form. ~~6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency~~ (x) The Registration Statement is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made effective under the Act ~~(except with respect~~ and, to ~~any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with~~ the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any best of their ~~respective properties or assets may be bound or affected and which have been filed as exhibits to~~ knowledge, no stop order suspending the effectiveness of the Registration Statement ~~or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon~~ has been issued under the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations Act or proceedings ~~pending,~~ therefor initiated or threatened ~~or contemplated to which~~ by the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9Commission. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any Any required filing of the Base Prospectus and the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b)~~; and, based solely on a review of the list of stop orders on the Commission’s website~~ . (~~▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇~~xi) ~~on the date hereof, no stop order suspending the effectiveness of the~~ The Registration Statement and ~~no order directed at any document~~ the Prospectus (other than the documents incorporated by reference therein and the financial statements, related notes and schedules and other financial data and statistical data derived from the financial statements included or incorporated by reference in the Registration Statement or the Prospectus or ~~any amendment~~ omitted therefrom, as to which no opinion need be rendered) as of their respective effective or ~~supplement thereto~~issue dates, ~~has been issued, nor has any proceeding~~ complied as to form in all material respects with the requirements for registration statements on Form S-3 under the ~~purpose been instituted or threatened by~~ Act and the ~~Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance~~rules thereunder. (iixii) ~~In rendering such opinion~~Each document filed pursuant to the Exchange Act (other than the financial statements, ~~such counsel may state that its~~ related schedules and other financial data and statistical data derived from the financial statements included or incorporated by reference therein, as to which no opinion ~~is limited~~ need be rendered) and incorporated or deemed to ~~matters governed~~ be incorporated by reference in the ~~federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California~~ Disclosure Package and the ~~Delaware General Corporation Law~~Prospectus complied when so filed as to form in all material respects with the Exchange Act. ~~Such counsel shall also have furnished~~ NY18477005 (xiii) To the best of their knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the ~~Manager~~Prospectus, ~~on every date specified in Section 4(l) of this Agreement~~other than those disclosed therein, ~~a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager~~and, to the ~~effect~~ best of their knowledge, all pending legal or governmental proceedings to which the Company or its Significant Subsidiaries is a party or of which any of the property of the Company or its subsidiaries is the subject that ~~(x) such counsel has acted as counsel~~ are not described in the Registration Statement, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material to the business of the Company and its subsidiaries considered as one enterprise. (xiv) To the best of their knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Registration Statement or to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto, and the descriptions thereof or references thereto are correct in all material respects. (xv) No authorization, approval or consent of any court or governmental authority or agency is required that has not been obtained in connection with the ~~preparation~~ consummation by the Company of the transactions contemplated by this Agreement or any applicable Terms Agreement, except such as may be required under the Act, the Exchange Act, and state securities laws or blue sky laws or real estate syndication laws; and to the best of their knowledge, the execution and delivery of this Agreement and any applicable Terms Agreement and the consummation of the transactions contemplated herein and therein and compliance by the Company with its obligations hereunder and thereunder will not (A) constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Significant Subsidiary pursuant to, any contract, indenture, mortgage, loan agreement, note, lease or other instrument that is filed or incorporated by reference as an exhibit to the Registration Statement to which the Company or any Significant Subsidiary is a party or by which they are bound or to which any of the property or assets of the Company or any Significant Subsidiary is subject, except (i) where such breach, default, creation or imposition would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise and (ii) that such counsel expresses no opinion with respect to compliance with financial covenants or tests, or (B) result in a violation of the provisions of any administrative or court order or decree to which the Company or any of its subsidiaries is subject and which is known to such counsel, the charter or by-laws or other organizational document of the Company or any Significant Subsidiary or any applicable law or administrative regulation. (xvi) Neither the Company nor any Significant Subsidiary is, or will be immediately after the consummation of the transactions contemplated by this Agreement and any applicable Terms Agreement, required to be registered under the Investment Company Act. NY18477005 (xvii) The information in the Disclosure Package, the Prospectus and the Prospectus Supplement under the captions “Description of Common Shares,” “Certain Anti-Takeover Provisions,” “Certain Federal Income Tax Considerations” and “Supplemental United States Federal Income Tax Considerations,” to the extent that it constitutes matters of law or legal conclusions, has been reviewed by them and is correct in all material respects. (xviii) The Company has qualified as a REIT for each of its taxable years ended December 31, 1993 through 2011 and the Company is organized in conformity with the requirements for qualification as a REIT, and the Company's current and proposed method of operation will enable it to continue to meet the requirements for qualification and taxation as a REIT under the Code for its taxable year ending December 31, 2012 and for future taxable years. (xix) No holders of securities of the Company have rights to the registration of such securities under the Registration Statement. In addition, such counsel shall state that they have examined various documents and records and participated in conferences with officers and other representatives of the Company, representatives of the Accountants and with representatives of the Manager at which the contents of the Registration Statement, the Disclosure Package and the ~~Prospectus~~ Prospectus, and ~~has reviewed~~ any supplements or amendments thereto, and related matters were discussed and, although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package or the Prospectus, including the documents incorporated by reference therein (other than as specified above), and ~~(y) subject to the foregoing, such counsel confirms that~~any supplements or amendments thereto, on the basis of the ~~information gained in the course of performing the services referred to therein~~foregoing, ~~nothing~~ no facts came to ~~such counsel’s~~ their attention that ~~leads such counsel~~ caused them to believe that (i) the Registration ~~Statement~~Statement or any amendments thereto, on as of the most recent deemed effective ~~date,~~ date pursuant to Rule 430B(f)(2) ~~under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11~~ of the Act ~~in connection with~~ prior to the ~~sale~~ delivery of ~~the Shares~~such opinion, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the ~~Prospectus~~Disclosure Package, as ~~of its date, and as of~~ amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained ~~or contains any~~ an untrue statement of a material fact or omitted ~~or omits~~ to state ~~any~~ a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the ~~Disclosure Package~~Prospectus, as ~~amended~~ of its date or ~~supplemented~~ at the ~~Execution Time or at any applicable date related to the delivery of such opinion~~relevant Representation Date, contained ~~any~~ an untrue statement of a material fact or omitted 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; provided~~misleading (in each case, ~~however, such counsel is not passing upon and does not (a) assume any responsibility for~~ other than the ~~accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package~~ Form T-1 and the ~~Prospectus (except as~~ financial statements, related notes and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial data and statistical data derived from the financial statements included or incorporated by reference ~~in,~~ therein or omitted ~~from~~therefrom, ~~the Registration Statement, the Disclosure Package or the Prospectus~~as to which such counsel need express no statement). References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement ~~Date~~Date or Time of Delivery, as applicable. With respect to statements contained in the Disclosure Package, any statement contained in any of the constituent documents shall be deemed to be modified or superseded to the extent NY18477005 that any information contained in subsequent constituent documents modifies or replaces such statement. (c) The ~~Company~~ Manager shall have ~~requested and caused Maryland Counsel to furnish to~~ received from Sidley Austin LLP, counsel for the Manager, on every date specified in Section 4(m) of this Agreement, ~~its opinion~~such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the ~~effect that:~~ issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (itogether with any supplement thereto) ~~The~~ and other related matters as the Manager may reasonably require, and the Company ~~has been duly incorporated and is validly existing~~ shall have furnished to such counsel such documents as ~~a corporation in good standing under~~ they request for the purpose of enabling them to pass upon such matters. In giving their opinions, Sidley Austin LLP may rely as to matters involving the laws of the State of ~~Maryland. (ii) The~~ Ohio upon the opinion of Company ~~has the corporate power~~ Counsel, and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms Counsel may rely as to ~~legal~~ matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to involving the laws of the State of ~~Maryland~~New York upon the opinion of Sidley Austin LLP. Company Counsel and Sidley Austin LLP may rely (i) as to the qualification of the Company or its subsidiaries to do business in any state or jurisdiction, ~~and Maryland Counsel need express no opinion with respect to any federal~~ upon certificates of appropriate government officials, telephonic confirmation by representatives of such states or ~~state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii)~~ confirmation from information contained on the websites of such states and (ixii) ~~above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws~~ as to ~~which Maryland Counsel need express no opinion)~~matters of fact, ~~if any,~~ upon certificates and ~~those approvals, authorizations, consents, orders~~ written statements of officers and employees of and accountants for the Company or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreementits subsidiaries. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the ~~Chief Executive Officer~~ Chairman of the Board or the President and the principal financial or accounting officer ~~of the Company, on behalf~~ of the Company, dated as of such date, to the effect that the signers of such certificate have carefully examined the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and

Appears in 1 contract

Sources: Equity Distribution Agreement (Associated Estates Realty Corp)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 3(a) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The Company shall have requested and caused the Company Counsel to furnish to the Manager, on every date specified in Section ~~4(l)~~ 4 of this Agreement, its ~~opinion~~opinion and negative assurance statement, dated as of such date and addressed to the ~~Manager~~Manager in substantially the form attached hereto as Exhibit A. (c) In rendering such opinions, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United States, to the ~~effect that: 1. Based solely~~ extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Manager and (B) as to matters of fact, to the extent they deem proper, on certificates of ~~public officials, (i) each~~ responsible officers of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectuspublic officials. References to the Prospectus in this paragraph (bc) shall also include any supplements thereto at the Settlement Date. (c) The Company shall have requested and caused Maryland Counsel to furnish to the Manager, on every date specified in Section 4(m) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreement. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section ~~4(k)~~ 4 of this Agreement, a certificate of the Company, signed by the Chief Executive Officer or the President and the principal financial or accounting officer of the Company, ~~on behalf of the Company,~~ dated as of such date, to the effect that the signers of such certificate have carefully examined the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; (ii) to his knowledge, no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (iii) since the date of the most recent financial statements included in the Disclosure Package, there has been no Material Adverse Effect on the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus. (e) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4 hereof and to the extent requested by the Manager and upon reasonable advance notice in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of any unaudited interim financial information of the Company and included or incorporated by reference in the Registration Statement and the Prospectus in accordance with Statement on Auditing Standards No. 100, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules and pro forma financial statements included or incorporated by reference in the Registration Statement and the Prospectus and reported on by them comply as to form with the applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted by the Commission; (ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and their respective subsidiaries, their limited review, in accordance with standards established under Statement on Auditing Standards No. 100, of the unaudited interim financial information for the most recently reported quarter, carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and committees of the Company and their respective subsidiaries, and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and their respective subsidiaries as to transactions and events subsequent to the end of such quarter, nothing came to their attention which caused them to believe that: 1. any unaudited financial statements included or incorporated by reference in the Registration Statement and the Prospectus do not comply as to form with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or incorporated by reference in Quarterly Reports on Form 10-Q under the Exchange Act; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by reference in the Registration Statement and the Prospectus; 2. with respect to the period subsequent to the most recently reported quarter, there were any changes, at a specified date not more than five days prior to the date of the letter, in the long-term debt of the Company and their respective subsidiaries or capital stock of the Company or decreases in the stockholders’ equity of the Company as compared with the amounts shown on such consolidated balance sheets included or incorporated by reference in the Registration Statement and the Prospectus, or for the period from the end of such period to such specified date there were any decreases, as compared with the corresponding period in the preceding year, in net revenues or income before income taxes or in total or per share amounts of net income of the Company and their respective subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Manager; or 3. the information included or incorporated by reference in the Registration Statement and the Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), Item 302 (Supplementary Financial Information), Item 402 (Executive Compensation) and Item 503(d) (Ratio of Earnings to Fixed Charges) is not in conformity with the applicable disclosure requirements of Regulation S-K; and (iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth or incorporated by reference in the Registration Statement and the Prospectus and in Exhibit 12 to the Registration Statement, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. (f) The Company shall have requested and caused its Chief Financial Officer to have furnished to the Manager, on every date specified in Section 4 hereof and to the extent requested by the Manager in connection with any offering of the Shares, a certificate as to certain financial information included in the Disclosure Package and the Prospectus, in form and substance reasonably satisfactory to the Manager. (g) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (d) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto). (h) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b). (i) The Financial Industry Regulatory Authority shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (j) The Shares shall have been listed and admitted and authorized for trading on the Trading Market, and satisfactory evidence of such actions shall have been provided to the Manager. (k) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Manager, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, on each such date as provided in this Agreement.

Appears in 1 contract

Sources: Continuous Offering Program Agreement (Oculus Innovative Sciences, Inc.)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company and the Partnership contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 3(a)(viii) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened.. 32 (ib) The Company shall have requested and caused the Company ~~Counsel~~ Counsel, to furnish to the Manager, on every date specified in Section ~~4(l~~4(k) of this Agreement, ~~its opinion, dated as~~ an opinion of ~~such date and~~ Company Counsel addressed to the ~~Manager, to~~ Manager in the ~~effect that: 1. Based solely on certificates~~ form of ~~public officials, (i) each of the Company~~ Exhibits A-1 and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may beA-2, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (letter from ▇▇▇.▇▇~~▇.▇▇▇/~~▇ & ▇▇▇▇▇▇▇~~▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof~~▇ LLP, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished addressed to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the ~~course~~ form of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement DateExhibit A-3. (c) The Company shall have requested and caused ~~Maryland Counsel~~ Senior Corporate Counsel, to furnish to the Manager, on every date specified in Section ~~4(m~~4(k) of this Agreement, ~~its opinion, dated as~~ an opinion of ~~such date and~~ Senior Corporate Counsel addressed to the Manager, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described Manager in the ~~Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock~~ form of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreement.Exhibit B (d) The Company shall have requested and caused ~~Tax Counsel~~ Senior Corporate Counsel, to furnish to the Manager, on every date specified in Section ~~4(n~~4(k) of this Agreement, ~~its opinion~~an opinion of Maryland Counsel addressed to the Manager in the form of Exhibit C. (e) The Manager shall have received on every date specified in Section 4(k) of this Agreement, the favorable opinion of Clifford Chance US LLP, counsel for the Managers, dated as of such date and addressed to the Manager~~, and in form as set forth on Exhibit A.~~. (ef) The Company and the Partnership shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this ~~Agreement~~Agreement a certificate of its Chief Financial Officer and its Chief Accounting Officer, in the case of the Company, and of its general partner, in the case of the Partnership, in the form attached as Exhibit D hereto. The Managers shall have received from the Company and the Partnership on every date specified in Section 4(k), a certificate of its Chief Financial Officer and its Chief Accounting Officer, in the ~~Company, signed by the Chief Executive Officer or the President and the principal financial or accounting officer~~ case of the Company, and its general partner, in the case of the Partnership, in the form attached as Exhibit E hereto (g) The Company shall have requested and caused the Accountants to have furnished to the Manager, on ~~behalf~~ every date specified in Section 4(n) hereof and to the extent requested by the Manager in connection with any offering of the Shares, a comfort letter addressed to the Managers in the form and substance satisfactory to the Managers. (h) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall have been no material adverse change or any development reasonably expected to result in a material adverse change in the business, properties, management, financial condition or results of operations of the Company, ~~dated~~ the Partnership and the Subsidiaries taken as a whole shall occur or become known the effect of which, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto). (i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post‑effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b). (j) No Prospectus or amendment or supplement to the Registration Statement or the Prospectus shall have been filed to which the Manager objects in writing (k) Between the Execution Time and the time of any sale of Shares through the Manager, (i) no stop order with respect to the effectiveness of the Registration Statement shall have been issued under the Securities Act or proceedings initiated under Section 8(d) or 8(e) of the Securities Act; (ii) the Registration Statement and all amendments thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (iii) the Prospectus and amendments or supplements thereto shall not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they are made, not misleading; (iv) no Disclosure Package, and no amendment or supplement thereto, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading; and (v) none of the Issuer Free Writing Prospectuses, if any, shall include an untrue statement of a material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they are made, not misleading. (l) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (m) The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such ~~date,~~ actions shall have been provided to the ~~effect that~~ Manager. (n) The Articles Supplementary shall have been accepted for record by the ~~signers~~ MSDAT and shall be effective under the Maryland REIT Law. (o) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such ~~certificate have examined~~ cancellation shall be given to the ~~Registra~~Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Clifford Chance US LLP, counsel for the Manager, at ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on each such date as provided in this Agreement.

Appears in 1 contract

Sources: Equity Distribution Agreement (Hersha Hospitality Trust)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(q) of this Agreement; any ~~other~~ material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the Act shall have been instituted or threatened. (ib) The Company shall have requested and caused ~~the~~ Company Counsel to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, ~~its opinion~~an opinion and negative assurance letter, ~~dated as of such date and addressed to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i)~~ each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance reasonably satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The Company shall have requested and caused ~~Maryland Counsel~~ R▇▇▇▇▇▇▇, F▇▇▇, Ernst & M▇▇▇▇▇▇, p.c., or other intellectual property counsel reasonably satisfactory to the Manager, to furnish to the Manager, on ~~every~~ each date specified in Section 4(m) of this Agreement, ~~its opinion, dated as of such date and~~ their opinions addressed to the Manager, in form and substance reasonably satisfactory to the ~~effect that: (i) The Company has been duly incorporated~~ Manager and ~~is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease~~ its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreement. (d) The ~~Company~~ Manager shall have ~~requested and caused Tax Counsel to furnish to~~ received from G▇▇▇▇▇▇ Procter LLP, counsel for the Manager, on every date specified in Section 4(n) of this Agreement, ~~its opinion~~such opinion or opinions and disclosure letter or letters, dated as of such date and addressed to the Manager, with respect to the issuance and ~~in form~~ sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as ~~set forth on Exhibit A.~~the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the ~~Chief Executive Officer~~ chief executive officer or the President ~~and the principal financial or accounting officer~~ of the Company, ~~on behalf~~ and of the chief financial or chief accounting officer of the Company, dated as of such date, to the effect that the signers of such certificate have carefully examined the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the Company has received no stop order suspending the effectiveness of the Registration Statement, and no proceedings for such purpose or pursuant to Section 8A of the Act have been instituted or, to the Company’s knowledge, threatened by the Commission; (ii) since the date of the most recent financial statements included in the Prospectus and the Disclosure Package, there has been no event or condition of a type described in Section 2(n) hereof (a “Material Adverse Change”), except as set forth in or contemplated in the Disclosure Package and the Prospectus; (iii) the representations, warranties and covenants set forth in Section 2 of this Agreement are true and correct with the same force and effect as though expressly made on and as of such date; and (iv) the Company and its subsidiary have complied with all the agreements hereunder and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such date. (f) The Company shall have requested and caused each of (i) the Accountants and (ii), if applicable, the Former Accountants, to have furnished to the Manager, on every date specified in Section 4(o) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures contained in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (or any successor thereto), as well as confirming that they have performed a review of any unaudited interim financial information of the Company included in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards No. 100 (or any successor thereto). References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (g) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) Material Adverse Change, except as set forth in or contemplated in the Disclosure Package (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto). (h) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (i) The Shares shall have been listed and admitted and authorized for trading on the NYSE American, and satisfactory evidence of such actions shall have been provided to the Manager. (j) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Designated Manager such further information, certificates and documents as the Designated Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the applicable Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of G▇▇▇▇▇▇ Procter LLP, counsel for the Manager, at 6▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Redwood City, CA 94063, on each such date as provided in this Agreement.

Appears in 1 contract

Sources: Equity Distribution Agreement (Senseonics Holdings, Inc.)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement required to be filed shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(s) of this Agreement; any ~~other~~ material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the Act shall have been instituted or threatened. (ib) The Company shall have requested and caused ~~the~~ each of Company Counsel and Company IP counsel to furnish to the Manager, on every date specified in ~~Section~~ Sections 4(l) and 4(m) of this Agreement, ~~its opinion, dated as of such date and addressed to~~ an opinion collectively covering the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, opinions in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The ~~Company~~ Manager shall have ~~requested and caused Maryland Counsel to furnish to the Manager~~received from Ropes & ▇▇▇▇ LLP, on every date specified in Section 4(m) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid counsel for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreement. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, ~~its opinion~~such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and ~~in form~~ sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as ~~set forth on Exhibit A.~~the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (ed) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the ~~Chief Executive Officer or the President and the principal financial or accounting~~ chief executive officer of the Company, ~~on behalf~~ and of the chief financial or chief accounting officer of the Company, dated as of such date, to the effect that the signers of such certificate have carefully examined the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the Company has received no stop order suspending the effectiveness of the Registration Statement, and no proceedings for such purpose or pursuant to Section 8A of the Act have been instituted or, to the Company’s knowledge, threatened by the Commission; (ii) since the date of the most recent financial statements included in the Prospectus and the Disclosure Package, there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus; (iii) the representations, warranties and covenants set forth in Section 2 of this Agreement are true and correct with the same force and effect as though expressly made on and as of such date; and (iv) the Company has complied with all the agreements hereunder and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such date. (e) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(o) hereof to the extent financial information audited or reviewed by such firms is included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospect, as amended and supplement to the date of such letter, and to the extent requested by the Manager in connection with any offering of the Shares, a letter (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, which letter shall cover, without limitation, the various financial statements and disclosures contained in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72, as well as confirming that they have performed a review of any unaudited interim financial information of the Company included in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards No. 100. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(p) of this Agreement, a certificate of the chief financial officer of the Company, dated as of such date, in form and substance to the Manager and agreed upon prior to the date hereof, covering certain financial matters of the Company. (g) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter referred to in paragraph (e) of this Section 6 or (ii) Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto). (h) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (i) The Shares shall have been listed and admitted and authorized for trading on Nasdaq, and satisfactory evidence of such actions shall have been provided to the Manager. (j) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. (k) Prior to the Execution Time, the Manager shall have received a certificate satisfying the beneficial ownership due diligence requirements of the Financial Crimes Enforcement Network (“FinCEN”) from the Company in form and substance reasonably satisfactory to the Manager, along with such additional supporting documentation as requested by the Manager in connection with the verification of the foregoing certificate. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and its counsel, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Ropes & ▇▇▇▇ LLP, counsel for the Manager, at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇ ▇▇▇▇▇▇, on each such date as provided in this Agreement.

Appears in 1 contract

Sources: Equity Distribution Agreement (Bluebird Bio, Inc.)

Conditions to the Obligations of the Manager. The obligations of the Manager and Forward Purchaser under this Agreement (including any Terms Agreement) and the Confirmations shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation ~~Date,~~ Date and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b) with respect to any sale of Offered Shares; each Interim Prospectus Supplement shall have been filed in the manner required by Rule 424(b); any ~~other~~ material required to be filed by the Company pursuant to Rule 433(d) under the ~~Act,~~ Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The Company shall have requested and caused ~~the Company Counsel~~ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ to furnish to the ~~Manager~~Manager and the Forward Purchaser (or, in the case of a Representation Date of the type described in Section 4(k)(iii) of this Agreement, the Manager party to such Terms Agreement), on every date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the ~~Manager, to~~ Manager and the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporationForward Purchaser, in ~~good standing under~~ substantially the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise form set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement DateExhibit A hereto. (c) The Company shall have requested and caused ~~Maryland Counsel~~ GableGotwals to furnish to the ~~Manager~~Manager and the Forward Purchaser (or, in the case of a Representation Date of the type described in Section 4(k)(iii) of this Agreement, the Manager party to such Terms Agreement), on every date specified in Section ~~4(m~~4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package Manager and the ~~Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of~~ Forward Purchaser, in substantially the ~~Company is as~~ form set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution AgreementExhibit B hereto. (d) The ~~Company~~ Manager and the Forward Purchaser shall have ~~requested~~ received from ▇▇▇▇ ▇▇▇▇▇▇▇▇, counsel for the Manager and ~~caused Tax Counsel~~ the Forward Purchaser (or, in the case of a Representation Date of the type described in Section 4(k)(iii) of this Agreement, the Manager party to ~~furnish to the Manager~~such Terms Agreement), on every date specified in Section ~~4(n~~4(m) of this Agreement, ~~its opinion~~such opinion or opinions, dated as of such date and addressed to the ~~Manager~~Manager and the Forward Purchaser, with respect to the issuance and sale of the Offered Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any amendment or supplement thereto) and other related matters as the Manager and the Forward Purchaser may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. (e) Since the respective dates as of which information is disclosed in ~~form~~ the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in paragraph (g) of this Section 6 or (ii) any adverse change, or any development involving a prospective adverse change, in or affecting the business, properties, management, earnings, results of operations or financial condition of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth ~~on Exhibit A.~~in or contemplated in the Disclosure Package (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Offered Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto). (ef) The Company shall have furnished or caused to be furnished to the ~~Manager~~Manager and the Forward Purchaser (or, in the case of a Financial Representation Date of the type described in Section 4(n)(ii) of this Agreement, the Manager party to such Terms Agreement), on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the President and Chief Executive Officer ~~or the President~~ and the principal financial or accounting officer ~~of the Company, on behalf~~ of the Company, dated as of such date, to the effect that the signers of such certificate have ~~examined~~ reviewed the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) subject to modification to incorporate the disclosures contained in the Registration Statement, the Disclosure Package and the Prospectus, and the documents incorporated by reference therein, in each case as amended or supplemented as of such date, the representations and warranties of the Company in Section 2 of this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (iii) since the date of the most recent financial statements included in the Disclosure Package, there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus. (g) The Company shall have requested and caused PricewaterhouseCoopers LLP and Ernst & Young LLP, to the extent an audit opinion of such firm is incorporated by reference in the Registration Statement, to have furnished to the Manager and the Forward Purchaser (or, in the case of a Financial Representation Date of the type described in Section 4(n)(ii) of this Agreement, the Manager party to such Terms Agreement), on every date specified in Section 4(n) hereof, letters (which may refer to letters previously delivered to the Manager and the Forward Purchaser), containing statements and information of the type ordinarily included in accountants “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement, the Interim Prospectus Supplements, the Prospectus and the Permitted Free Writing Prospectuses, if any, dated as of such date, in form and substance satisfactory to the Manager and the Forward Purchaser or, in the case of Section 4(k)(iii), the Manager party to such Terms Agreement; provided that the cut-off date for the procedures performed by such accountants and described in such letters shall be a date not more than two Business Days prior to the date of such letter. (h) Between the Execution Time and the time of any sale of Offered Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as such term is defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. (i) The Offered Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager and the Forward Purchaser. (j) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Manager and the Forward Purchaser, as applicable (or, in the case of a Representation Date of the type described in Section 4(k)(iii) of this Agreement, the Manager party to such Terms Agreement), such further information, certificates and documents as the Manager(s) may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and the Forward Purchaser and counsel for the Manager and the Forward Purchaser, this Agreement and all obligations of the Manager and the Forward Purchaser hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager and the Forward Purchaser. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇ ▇▇▇▇▇▇▇▇, counsel for the Manager and the Forward Purchaser, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on each such date as provided in this Agreement.

Appears in 1 contract

Sources: Equity Distribution Agreement (Oneok Inc /New/)

Conditions to the Obligations of the Manager. The obligations of the ~~Manager~~ Managers under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement, as applicable, shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(x) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The Company shall have requested and caused the Company Counsel and In-House Counsel, to furnish to ~~the Manager~~such Managers, on every date specified in Section 4(l) of this Agreement, ~~its opinion~~their opinions and negative assurance letter, as applicable, dated as of such date and addressed to ~~the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to~~ such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such dateManagers, in form and substance satisfactory to ~~the Manager, to the effect that (x)~~ such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement DateManagers. (c) ~~The Company~~ Such Managers shall have ~~requested and caused Maryland Counsel to furnish to the Manager~~received from Managers’ Counsel, on every date specified in Section 4(m) of this Agreement, ~~its opinion~~such opinion or opinions, dated as of such date and addressed to ~~the Manager~~such Managers, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the ~~Prospectus and~~ Company shall have furnished to ~~enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is~~ such counsel such documents as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe they request for the ~~Shares arising under the Maryland General Corporation Law or the charter or bylaws~~ purpose of ~~the Company. (v) The specimen stock certificate used~~ enabling them to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as pass upon such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreementmatters. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The Company shall have furnished or caused to be furnished to ~~the Manager~~such Managers, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the President or Chief ~~Executive~~ Financial Officer ~~or the President and the principal financial or accounting officer of the Company, on behalf~~ of the Company, dated as of such date, to the effect that the ~~signers~~ signer of such certificate have carefully examined the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (iii) since the date of the most recent financial statements included in the Disclosure Package, there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus. (e) The Company shall have requested and caused the Accountants to have furnished to such Managers, on every date specified in Section 4(n) hereof and to the extent requested by such Managers in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Managers), dated as of such date, in form and substance satisfactory to such Managers, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Prospectus and the Disclosure Package. (f) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of such Managers, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto). (g) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b). (h) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (i) The Shares shall have been listed and admitted and authorized for trading on Nasdaq, and satisfactory evidence of such actions shall have been provided to such Managers, to the extent this Agreement and the transactions contemplated hereunder require the filing of a Listing of Additional Shares Notification form with Nasdaq. (j) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to such Managers such further information, certificates and documents as such Managers may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Managers and counsel for the Managers, this Agreement and all obligations of the applicable Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by such Manager with respect to itself only. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. Following any such cancellation by a Manager, this Agreement shall remain in effect as to the other Manager that has not exercised its right to cancel this Agreement pursuant to this Section 6 and any obligations and rights of the Managers under this Agreement shall be satisfied by or afforded to only such other Manager. The documents required to be delivered by this Section 6 shall be delivered at the office of Milbank LLP, counsel for the Managers, at 5▇ ▇▇▇▇▇▇ ▇▇▇▇▇, New York, New York 10001 on each such date as provided in this Agreement.

Appears in 1 contract

Sources: Equity Distribution Agreement (United Airlines, Inc.)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 3(a)(ix) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (i1) The Company shall have requested and caused the Company Counsel to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its ~~opinion~~opinion and negative assurance statement, dated as of such date and addressed to the ~~Manager, to~~ Manager in substantially the ~~effect that:~~form attached hereto as Exhibit A. ~~1. Based solely on certificates of public officials,~~ (i2) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company ~~is not,~~ shall have requested and ~~after giving effect~~ caused its General Counsel to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished furnish to the Manager, on every date specified in Section ~~4(l~~4(k) of this Agreement, ~~a written~~ its opinion and negative assurance statement, dated as of such date and addressed to the Manager ~~and dated~~ in substantially the form attached hereto as Exhibit B. (3) In rendering such opinions, such counsel may rely (A) as to matters involving the application of ~~such date, in form and substance satisfactory to~~ laws of any jurisdiction other than the ~~Manager~~State of Delaware or the Federal laws of the United States, to the ~~effect that (x) such counsel has acted as counsel to the Company~~ extent they deem proper and specified in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, ~~contained or contains any untrue statement~~ upon the opinion of ~~a material fact or omitted or omits~~ other counsel of good standing whom they believe to ~~state any material fact necessary in order~~ be reliable and who are satisfactory to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel ~~is not passing upon and does not (a) assume any responsibility~~ for the ~~accuracy~~Manager and (B) as to matters of fact, ~~completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and~~ to the extent ~~set forth in such opinion~~ they deem proper, on certificates of responsible officers of the Company and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectuspublic officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The ~~Company~~ Manager shall have ~~requested and caused Maryland Counsel to furnish to~~ received from Shearman & Sterling LLP, counsel for the Manager, on every date specified in Section 4(m) of this Agreement, ~~its opinion~~such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the ~~Shares by~~ Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company ~~and consummation~~ shall have furnished to such counsel such documents as they request for the purpose of ~~the transactions contemplated by this Agreement, other than~~ enabling them to pass upon such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreementmatters. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chief Executive Officer or the President and the principal financial or accounting officer of the Company, ~~on behalf of the Company,~~ dated as of such date, to the effect that the signers of such certificate have carefully examined the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (iii) since the date of the most recent financial statements included in the Disclosure Package, there has been no material adverse effect on the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus. (1) The Company shall have requested and caused each of the Accountants and the 2005 Accountants to have furnished to the Manager, on every date specified in Section 4(n) hereof and to the extent requested by the Manager and upon reasonable advance notice in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that (in the case of the Accountants) they have performed a review of any unaudited interim financial information of the Company and Northwest and included or incorporated by reference in the Registration Statement and the Prospectus in accordance with Statement on Auditing Standards No. 100, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules and pro forma financial statements included or incorporated by reference in the Registration Statement and the Prospectus and reported on by them comply as to form with the applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted by the Commission; (ii) (in the case of the Accountants) on the basis of a reading of the latest unaudited financial statements made available by the Company and Northwest and their respective subsidiaries; their limited review, in accordance with standards established under Statement on Auditing Standards No. 100, of the unaudited interim financial information for the 9-month period ended September 30, 2008, and as at September 30, 2008, carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and committees of the Company and Northwest and their respective subsidiaries; and inquiries of certain officials of the Company and Northwest who have responsibility for financial and accounting matters of the Company and Northwest and their respective subsidiaries as to transactions and events subsequent to September 30, 2008, nothing came to their attention which caused them to believe that: (1) any unaudited financial statements included or incorporated by reference in the Registration Statement and the Prospectus do not comply as to form with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or incorporated by reference in Quarterly Reports on Form 10-Q under the Exchange Act; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by reference in the Registration Statement and the Prospectus; (2) with respect to the period subsequent to September 30, 2008, there were any changes, at a specified date not more than five days prior to the date of the letter, in the long-term debt of the Company or Northwest and their respective subsidiaries or capital stock of the Company or Northwest or decreases in the stockholders’ equity of the Company or Northwest as compared with the amounts shown on the September 30, 2008 consolidated balance sheets included or incorporated by reference in the Registration Statement and the Prospectus, or for the period from October 1, 2008 to such specified date there were any decreases, as compared with the corresponding period in the preceding year, in net revenues or income before income taxes or in total or per share amounts of net income of the Company or Northwest and their respective subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company or Northwest as to the significance thereof unless said explanation is not deemed necessary by the Manager; or (3) the information included or incorporated by reference in the Registration Statement and the Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), Item 302 (Supplementary Financial Information), Item 402 (Executive Compensation) and Item 503(d) (Ratio of Earnings to Fixed Charges) is not in conformity with the applicable disclosure requirements of Regulation S-K. (iii) (in the case of the Accountants) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth or incorporated by reference in the Registration Statement and the Prospectus and in Exhibit 12 to the Registration Statement, agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation; and (iv) (in the case of the Accountants) on the basis of a reading of the unaudited pro forma financial statements included or incorporated by reference in the Registration Statement and the Prospectus (the “pro forma financial statements”); carrying out certain specified procedures; inquiries of certain officials of the Company and Northwest who have responsibility for financial and accounting matters; and proving the arithmetic accuracy of the application of the pro forma adjustments to the historical amounts in the pro forma financial statements, nothing came to their attention which caused them to believe that the pro forma financial statements do not comply as to form in all material respects with the applicable accounting requirements of Rule 11-02 of Regulation S-X or that the pro forma adjustments have not been properly applied to the historical amounts in the compilation of such statements. (2) The Company shall have requested and caused its Chief Financial Officer to have furnished to the Manager, on every date specified in Section 4(m) hereof and to the extent requested by the Manager in connection with any offering of the Shares, a certificate as to certain financial information included in the Disclosure Package and the Prospectus, in form and substance reasonably satisfactory to the Manager. (3) References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto). (g) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b). (h) The Financial Industry Regulatory Authority shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (i) The Shares shall have been listed and admitted and authorized for trading on the New York Stock Exchange, and satisfactory evidence of such actions shall have been provided to the Manager. (j) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Shearman & Sterling LLP, counsel for the Manager, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇ ▇▇▇▇, ▇▇, on each such date as provided in this Agreement.

Appears in 1 contract

Sources: Continuous Offering Program Agreement (Delta Air Lines Inc /De/)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable ~~Time,~~ Time and Settlement ~~Date and Time of Delivery~~Date, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the ~~Commission~~ SEC have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(q) of this Agreement; any ~~other~~ material required to be filed by the Company pursuant to Rule 433(d) under the ~~Act,~~ Securities Act shall have been filed with the ~~Commission~~ SEC within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the Securities Act shall have been instituted or threatened. (ib) The Company shall have requested and caused ~~the Company Counsel~~ Skadden, Arps, Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP to furnish to the Manager, on ~~every~~ each date specified in Section 4(k) of this Agreement, their written opinion and negative assurance letter addressed to the Manager, substantially in the form attached hereto as Exhibit A. (c) The Company shall have requested and caused H▇▇▇▇ ▇▇▇▇▇▇▇ US LLP to furnish to the Manager, on each date specified in Section 4(l) of this Agreement, ~~its opinion~~their written opinion addressed to the Manager, substantially in the form attached hereto as Exhibit B. (d) The Manager shall have received from C▇▇▇▇▇▇▇▇ & B▇▇▇▇▇▇ LLP, counsel for the Manager, on each date specified in Section 4(m) of this Agreement, such written opinion and negative assurance letter, dated as of such date and addressed to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure ~~Package or the Prospectus. References to~~ Package, the Prospectus ~~in this paragraph~~ (btogether with any supplement thereto) ~~shall also include any supplements thereto at~~ and other related matters as the ~~Settlement Date. (c) The~~ Manager may reasonably require, and the Company shall have ~~requested and caused Maryland Counsel~~ furnished to ~~furnish to the Manager, on every date specified in Section 4(m) of this Agreement, its opinion, dated~~ such counsel such documents as of such date and addressed to the Manager, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe they request for the ~~Shares arising under the Maryland General Corporation Law or the charter or bylaws~~ purpose of ~~the Company~~enabling them to pass upon such matters. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreement. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The Company shall have furnished ~~or caused to be furnished~~ to the Manager, on ~~every~~ each date specified in Section ~~4(k~~4(j) of this Agreement, a certificate of the Company, signed by the Chief Executive Officer ~~or the President~~ and the principal financial or accounting officer ~~of the Company, on behalf~~ of the Company, dated as of such date, to the effect that the signers of such certificate have carefully examined the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any amendments or supplements thereto and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (iii) since the date of the most recent financial statements included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), there has been no material adverse change in the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto). (f) On or prior to the First Placement Notice Date, the Manager shall have received a certificate, signed on behalf of the Company by the Secretary of the Company and attested to by an executive officer of the Company, dated as of such date and in form and substance satisfactory to the Manager and its counsel, certifying as to (i) the amended and restated certificate of incorporation of the Company, (ii) the amended and restated bylaws of the Company, (iii) the resolutions of the board of directors of the Company or duly authorized committee thereof authorizing the execution, delivery and performance of this Agreement and the issuance and sale of the Shares and (iv) the incumbency of the officers of the Company duly authorized to execute this Agreement and the other documents contemplated by this Agreement (including each of the officers set forth on Exhibit 2). (g) The Company shall have requested and caused Ernst & Young LLP to have furnished to the Manager, on each date specified in Section 4(n) of this Agreement and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures contained in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 or successor standards, as well as confirming that they have performed a review of any unaudited interim financial information of the Company included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards No. 100 or successor standards. References to the Prospectus in this paragraph include any supplement thereto at the date of the letter. (h) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto). (i) At each Representation Date and prior to each Settlement Date, the Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. (j) The Shares shall have been listed and admitted and authorized for trading on the Nasdaq Global Market, and satisfactory evidence of such actions shall have been provided to the Manager. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date by the Manager with respect to itself only. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.

Appears in 1 contract

Sources: Sales Agreement (Applied Therapeutics Inc.)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the ~~Company~~ Transaction Entities contained herein as of the Execution Time, each Representation Date, and as of each Applicable ~~Time,~~ Time and Settlement ~~Date and Time of Delivery~~Date, (ii) to the performance by each of the ~~Company~~ Transaction Entities of its obligations ~~hereunder~~ hereunder, (iii) the accuracy of the statements of the Transaction Entities made in any certificates pursuant to the provisions hereof, and (~~iii~~iv) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b); each Interim Prospectus Supplement, if any, shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(z) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The Company shall have requested and caused the Company Counsel to furnish to the Manager, on ~~every date specified in Section 4(l) of this Agreement~~each Representation Date, its opinion, dated as of such date and addressed to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described substantially in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken form attached hereto as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation LawExhibit A-1. Such counsel shall also have furnished to the Manager, on ~~every date specified in Section 4(l) of this Agreement~~each Representation Date, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained substantially in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, form attached hereto as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement DateExhibit A-2. (c) The Company shall have requested and caused Maryland ~~Counsel~~ Counsel, to furnish to the Manager, on ~~every date specified in Section 4(m) of this Agreement~~each Representation Date, its opinion, dated as of such date and addressed to the Manager, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described substantially in the ~~Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is~~ form attached hereto as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreement.Exhibit B. (d) The Company shall have requested and caused Tax ~~Counsel~~ Counsel, to furnish to the Manager, on ~~every date specified in Section 4(n) of this Agreement~~each Representation Date, its opinion, dated as of such date and addressed to the Manager, ~~and~~ substantially in the form attached hereto as ~~set forth on~~ Exhibit A.C. (e) The Manager shall have received from ▇▇▇▇▇▇▇ Procter LLP, counsel for the Manager, on each Representation Date, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters. (f) The Company shall have furnished or caused to be furnished to the Manager, on ~~every date specified in Section 4(k) of this Agreement~~each Representation Date, a certificate on behalf of the ~~Company~~Company and not personally, signed by the Chief Executive ~~Officer~~ Officer, President or ~~the President~~ General Counsel, and the principal financial or accounting officer ~~of the Company, on behalf~~ of the Company, dated as of such date, to the effect that the ~~signers~~ signer of such certificate have carefully examined the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the representations and warranties of the Transaction Entities in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Transaction Entities has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the knowledge of the Transaction Entities, threatened; and (iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package, there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus. (g) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures contained or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634), as well as confirming that they have performed a review of any unaudited interim financial information of the Transaction Entities included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards ▇▇. ▇▇▇ (▇▇ ▇▇▇▇); provided that no such letters shall be required relating to the Rockwood Predecessor Data Centers statement of revenue and certain expenses included or incorporated by reference in the Disclosure Package and the Prospectus. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letter. (h) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in Section 6(g) or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement, the Disclosure Package and the Prospectus. (i) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b). (j) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. (k) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (l) The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager. (m) Prior to each Settlement Date, the Transaction Entities shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date by the Manager. Notice of such cancellation shall be given to the Company in writing or by facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇▇ Procter LLP, counsel for the Manager, at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on each such date as provided in this Agreement.

Appears in 1 contract

Sources: Equity Distribution Agreement (Digital Realty Trust, L.P.)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable ~~Time,~~ Time and Settlement ~~Date and Time of Delivery~~Date, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 3(a) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The Company shall have requested and caused the Company Counsel to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its ~~opinion~~opinion and negative assurance statement, dated as of such date and addressed to the ~~Manager~~Manager in substantially the form attached hereto as Exhibit A. In rendering such opinions, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the State of Texas or the Federal laws of the United States, to the ~~effect that: 1. Based solely~~ extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Manager and (B) as to matters of fact, to the extent they deem proper, on certificates of ~~public officials, (i) each~~ responsible officers of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectuspublic officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The Company shall have requested and caused Maryland Counsel to furnish to the Manager, on every date specified in Section 4(m) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreement. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section ~~4(k~~4(m) of this Agreement, a certificate of the Company, signed by the Chief Executive Officer or the President and the principal financial or accounting officer of the Company, ~~on behalf of the Company,~~ dated as of such date, to the effect that the signers of such certificate have carefully examined the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (iii) since the date of the most recent financial statements included in the Disclosure Package, there has been no Material Adverse Effect on the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus. (d) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(m) hereof and to the extent requested by the Manager and upon reasonable advance notice in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of any unaudited interim financial information of the Company and included or incorporated by reference in the Registration Statement and the Prospectus in accordance with Statement on Auditing Standards No. 100, and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules and pro forma financial statements included or incorporated by reference in the Registration Statement and the Prospectus and reported on by them comply as to form with the applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted by the Commission; (ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and their respective subsidiaries; their limited review, in accordance with standards established under Statement on Auditing Standards No. 100, of the unaudited interim financial information for the most recently reported quarter, carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and committees of the Company and their respective subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and their respective subsidiaries as to transactions and events subsequent to the end of such quarter, nothing came to their attention which caused them to believe that: 1. any unaudited financial statements included or incorporated by reference in the Registration Statement and the Prospectus do not comply as to form with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or incorporated by reference in Quarterly Reports on Form 10-Q under the Exchange Act; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by reference in the Registration Statement and the Prospectus; 2. with respect to the period subsequent to the most recently reported quarter, there were any changes, at a specified date not more than five days prior to the date of the letter, in the long-term debt of the Company and their respective subsidiaries or capital stock of the Company or decreases in the stockholders’ equity of the Company as compared with the amounts shown on such consolidated balance sheets included or incorporated by reference in the Registration Statement and the Prospectus, or for the period from the end of such period to such specified date there were any decreases, as compared with the corresponding period in the preceding year, in net revenues or income before income taxes or in total or per share amounts of net income of the Company and their respective subsidiaries, except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Manager; or 3. the information included or incorporated by reference in the Registration Statement and the Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data), Item 302 (Supplementary Financial Information), Item 402 (Executive Compensation) and Item 503(d) (Ratio of Earnings to Fixed Charges) is not in conformity with the applicable disclosure requirements of Regulation S-K. (iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth or incorporated by reference in the Registration Statement and the Prospectus agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation; and (e) The Company shall have requested and caused its principal financial and accounting officer to have furnished to the Manager, on every date specified in Section 4(m) hereof and to the extent requested by the Manager in connection with any offering of the Shares, a certificate as to certain financial information included in the Disclosure Package and the Prospectus, in form and substance reasonably satisfactory to the Manager. (f) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (d) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto). (g) The Financial Industry Regulatory Authority shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (h) The Shares shall have been listed and admitted and authorized for trading on the NASDAQ, and satisfactory evidence of such actions shall have been provided to the Manager. (i) Prior to each Settlement Date, the Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Manager, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, on each such date as provided in this Agreement.

Appears in 1 contract

Sources: Continuous Offering Program Agreement (Opexa Therapeutics, Inc.)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; any ~~other~~ material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The Company shall have requested and caused H▇▇▇▇ Lovells US LLP, counsel to the Company ~~Counsel~~ and the Operating Partnership, to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in ~~the Disclosure Package~~ Annex II-1 and ~~the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free~~ II-2 hereto and ~~clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject~~ to ~~no preemptive rights or options arising under the Delaware General Corporation Law or under~~ such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, further effect as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Datemay reasonably request. (c) The Company shall have requested and caused S▇▇▇ ▇▇▇▇▇ LLP, Maryland ~~Counsel~~ counsel for the Company and the Operating Partnership, to furnish to the Manager, on every date specified in Section ~~4(m~~4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in Annex III hereto and to such further effect as the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects counsel to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case Manager may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreement.reasonably request: (d) The ~~Company~~ Manager shall have ~~requested and caused Tax Counsel to furnish to~~ received from Sidley Austin llp, counsel for the Manager, on every date specified in Section ~~4(n~~4(m) of this Agreement, ~~its opinion~~such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and ~~in form~~ sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as ~~set forth on Exhibit A.~~the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. In giving their opinion, Sidley Austin LLP may rely as to matters involving the laws of the State of Maryland upon the opinion of S▇▇▇ ▇▇▇▇▇ LLP or upon the opinion of counsel satisfactory to the Manager. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chairman of the Board, Chief Executive Officer or the President and the principal financial or accounting officer ~~of the Company, on behalf~~ of the Company, dated as of such date, to the effect that the signers of such certificate have carefully examined the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; (iii) since the date of the most recent financial statements included in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto), there has been no Material Adverse Change, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto); and (iv) there is not pending or threatened any action, suit, proceeding, inquiry or investigation, to which the Company, the Operating Partnership or any of their subsidiaries is a party, or to which any of their respective properties or assets is subject, before or brought by any court or governmental agency or body, domestic or foreign, which would reasonably be expected to result in a Material Adverse Change, or which would reasonably be expected to materially and adversely affect the properties or assets thereof or the consummation of the transactions contemplated in this Agreement or the performance by the Company or the Operating Partnership of their obligations under this Agreement. (f) The Operating Partnership shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the chief executive officer and chief financial officer or chief accounting officer of the sole member of Campus Crest Communities GP, LLC, the general partner of the Operating Partnership, confirming that the representations and warranties of the Operating Partnership in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Operating Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date. (g) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chief Financial Officer of the Company, dated as of such date, in form satisfactory to the Manager. (h) The Company shall have requested and caused KPMG LLC to have furnished to the Manager, on every date specified in Section 4(n) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, containing statements and information of the type customarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Disclosure Package or the Prospectus; provided, that the letter delivered on the such date shall use a “cut-off” date no more than three business days prior to the such date. References to the Prospectus in this paragraph (g) include any supplement thereto at the date of the letter. (i) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (h) of this Section 6 or (ii) any Material Adverse Change, except as set forth in or contemplated in the Registration Statement, the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto). (j) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b). (k) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in or withdrawal of the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. (l) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (m) The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager. (n) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Sidley Austin llp, counsel for the Manager, at 787 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇n each such date as provided in this Agreement.

Appears in 1 contract

Sources: Equity Distribution Agreement (Campus Crest Communities, Inc.)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement, if any, shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(x) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The Company shall have requested and caused the Company Counsel and Tax Counsel to each furnish to the Manager, on every date specified in Section 4(l) of this Agreement, ~~its opinion~~such opinion or opinions, dated as of such date and addressed to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The ~~Company~~ Manager shall have ~~requested and caused Maryland Counsel to furnish to~~ received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ llp, counsel for the Manager, on every date specified in Section 4(m) of this Agreement, ~~its opinion~~such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the ~~Shares by~~ Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company ~~and consummation~~ shall have furnished to such counsel such documents as they reasonably request for the purpose of ~~the transactions contemplated by this Agreement, other than~~ enabling them to pass upon such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreementmatters. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by ~~the Chief Executive Officer or the President and the principal financial or accounting~~ an executive officer of the ~~Company, on behalf~~ Company who has specific knowledge of the ~~Company~~Company financial matters and is reasonably satisfactory to the Manager, dated as of such date, to the effect that the signers of such certificate have carefully examined the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (iii) since the date of the most recent financial statements included or incorporated by reference in the Disclosure Package and the Prospectus, there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any supplement thereto). (e) The Company shall have requested and caused the Accountants to have each furnished to the Manager, addressed to the Manager, on every date specified in Section 4(n) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance reasonably satisfactory to the Manager and containing such statements and information customarily found in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information of the Company contained in or incorporated by reference in the Registration Statement and the Prospectus. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto). (g) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (h) The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager. (i) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ llp, counsel for the Manager, at ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ on each such date as provided in this Agreement.

Appears in 1 contract

Sources: Equity Distribution Agreement (Danimer Scientific, Inc.)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(r) of this Agreement; any ~~other~~ material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the Act shall have been instituted or threatened. (ib) The Company shall have requested and caused ~~the~~ Company Counsel and General Counsel to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, opinions in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Datemanager. (c) The ~~Company~~ Manager shall have ~~requested and caused Maryland Counsel to furnish to~~ received from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Manager, on every date specified in Section 4(m) of this Agreement, ~~its opinion~~such opinion or opinions and disclosure letter or letters, dated as of such date and addressed to the Manager, with respect to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the ~~Shares by~~ Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company ~~and consummation~~ shall have furnished to such counsel such documents as they reasonably request for the purpose of ~~the transactions contemplated by this Agreement, other than~~ enabling them to pass upon such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreementmatters. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the ~~Chief Executive Officer~~ chief executive officer or the President ~~and the principal financial or accounting officer~~ of the Company, ~~on behalf~~ and of the chief financial or chief accounting officer of the Company, dated as of such date, to the effect that the signers of such certificate have carefully examined the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the Company has received no stop order suspending the effectiveness of the Registration Statement, and no proceedings for such purpose or pursuant to Section 8A of the Act have been instituted or, to the Company’s knowledge, threatened by the Commission; (ii) since the date of the most recent financial statements included in the Prospectus and the Disclosure Package, there has been no event or condition of a type described in Section 2(l) hereof (a “Material Adverse Change”), except as set forth in or contemplated in the Disclosure Package and the Prospectus; (iii) the representations, warranties and covenants set forth in Section 2 of this Agreement are true and correct with the same force and effect as though expressly made on and as of such date; and (iv) the Company and its subsidiaries have complied with all the agreements hereunder and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such date. (e) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(n) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures contained in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AS 6101), as well as confirming that they have performed a review of any unaudited interim financial information of the Company included in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards No. 100. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(o) of this Agreement, a certificate of the chief financial officer of the Company, dated as of such date, in form and substance to the Manager and agreed upon prior to the date hereof, covering certain financial matters of the Company. (g) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) Material Adverse Change, except as set forth in or contemplated in the Disclosure Package (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto). (h) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (i) Nasdaq shall not have objected to the listing of the Shares for trading on Nasdaq. (j) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager with respect to itself only. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered remotely via electronic exchange, on each such date as provided in this Agreement.

Appears in 1 contract

Sources: Atm Equity Offering Sales Agreement (Fibrogen Inc)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable ~~Time,~~ Time and Settlement ~~Date and Time of Delivery~~Date, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(t) of this Agreement; any ~~other~~ material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the Act shall have been instituted ~~or threatened~~or, to the knowledge of the Company, be threatened by the Commission. (ib) The Company shall have requested and caused ~~the~~ Company Counsel to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are Agreement subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered4(r), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written ~~statement, addressed to the Manager~~ opinion and ~~dated as of such date,~~ disclosure letter in form and substance reasonably satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The ~~Company~~ Manager shall have ~~requested and caused Maryland Counsel to furnish to~~ received from Shearman & Sterling LLP, counsel for the Manager, on every date specified in Section 4(m) of this ~~Agreement~~Agreement subject to Section 4(r), ~~its opinion~~such opinion or opinions and disclosure letter or letters, dated as of such date and addressed to the Manager, with respect to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the ~~Shares by~~ Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company ~~and consummation~~ shall have furnished to such counsel such documents as they request for the purpose of ~~the transactions contemplated by this Agreement, other than~~ enabling them to pass upon such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreementmatters. (d) The Company shall have requested and caused ~~Tax~~ IP Counsel to furnish to the Manager, on every date specified in Section 4(n) of this ~~Agreement~~Agreement subject to Section 4(r), ~~its opinion~~such written opinions, dated as of such date and addressed to the Manager, with respect to intellectual property matters, and ~~in form~~ the Company shall have furnished to such counsel such documents as ~~set forth on Exhibit A.~~they request for the purpose of enabling them to pass upon such matters. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement subject to Section 4(r), a certificate of the Company, signed by the chief executive officer or the President of the Company, and by the chief financial or chief accounting officer of the Company, dated as of such date, to the effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the Company has received no stop order suspending the effectiveness of the Registration Statement, and no proceedings for such purpose or pursuant to Section 8A of the Act have been instituted or, to the Company’s knowledge, are threatened by the Commission; (ii) since the date of the most recent financial statements incorporated by reference in the Prospectus and the Disclosure Package, there has been no event or condition of a type described in Section 2(l) hereof (a “Material Adverse Change”), except as set forth in or contemplated in the Disclosure Package and the Prospectus; (iii) the representations, warranties and covenants set forth in Section 2 of this Agreement are true and correct with the same force and effect as though expressly made on and as of such date; and (iv) the Company has complied with all the agreements hereunder and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such date. (f) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(o) hereof, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance reasonably satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in AS 6101, as well as confirming that they have performed a review of any unaudited interim financial information of the Company included in the Registration Statement, the Disclosure Package and the Prospectus in accordance with AS 4105. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of the letter. (g) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been any Material Adverse Change, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which is, in the reasonable judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto). (h) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (i) The Shares shall have been listed and admitted and authorized for trading on the Nasdaq, and satisfactory evidence of such actions shall have been provided to the Manager. (j) If requested by the Manager, the Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the ~~Chief Executive Officer~~ chief financial officer or ~~the President and the principal financial or accounting~~ similar officer ~~of the Company, on behalf~~ of the Company, dated as of such date, in form and substance satisfactory to the ~~effect that~~ Manager providing “management comfort” with respect to certain financial information included in the ~~signers~~ Registration Statement and the Prospectus, as applicable. (k) Prior to each Settlement Date, the Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date, by the Manager. Notice of such ~~certificate have examined~~ cancellation shall be given to the ~~Registra~~Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Shearman & Sterling LLP, counsel for the Manager, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, on each such date as provided in this Agreement.

Appears in 1 contract

Sources: Equity Distribution Agreement (Quantum-Si Inc)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(q) of this Agreement; any ~~other~~ material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the Act shall have been instituted or threatened. (ib) The Company shall have requested and caused ~~the~~ Company Counsel and Intellectual Property Counsel to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, opinions in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Datemanager. (c) The ~~Company~~ Manager shall have ~~requested and caused Maryland Counsel to furnish to~~ received from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Manager, on every date specified in Section 4(m) of this Agreement, ~~its opinion~~such opinion or opinions and disclosure letter or letters, dated as of such date and addressed to the Manager, with respect to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the ~~Shares by~~ Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company ~~and consummation~~ shall have furnished to such counsel such documents as they reasonably request for the purpose of ~~the transactions contemplated by this Agreement, other than~~ enabling them to pass upon such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreementmatters. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the ~~Chief Executive Officer~~ chief executive officer or the President ~~and the principal financial or accounting officer~~ of the Company, ~~on behalf~~ and of the chief financial or chief accounting officer of the Company, dated as of such date, to the effect that the signers of such certificate have carefully examined the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the Company has received no stop order suspending the effectiveness of the Registration Statement, and no proceedings for such purpose or pursuant to Section 8A of the Act have been instituted or, to the Company’s knowledge, threatened by the Commission; (ii) since the date of the most recent financial statements included in the Prospectus and the Disclosure Package, there has been no event or condition of a type described in Section 2(l) hereof (a “Material Adverse Change”), except as set forth in or contemplated in the Disclosure Package and the Prospectus; (iii) the representations, warranties and covenants set forth in Section 2 of this Agreement are true and correct with the same force and effect as though expressly made on and as of such date; and (iv) the Company and its subsidiaries have complied with all the agreements hereunder and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such date. (e) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(n) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures contained in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72, as well as confirming that they have performed a review of any unaudited interim financial information of the Company included in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards No. 100. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(o) of this Agreement, a certificate of the chief financial officer of the Company, dated as of such date, in form and substance to the Manager and agreed upon prior to the date hereof, covering certain financial matters of the Company. (g) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) Material Adverse Change, except as set forth in or contemplated in the Disclosure Package (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto). (h) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (i) Nasdaq shall not have objected to the listing of the Shares for trading on Nasdaq. (j) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Managers and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager with respect to itself only. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Manager, at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, Menlo Park, CA 94025, on each such date as provided in this Agreement.

Appears in 1 contract

Sources: Equity Distribution Agreement (Fibrogen Inc)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement with respect to a Placement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable ~~Time, Settlement Date~~ Time and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) ~~The Prospectus, and any~~ Any supplement ~~thereto,~~ to the Prospectus required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The Company shall have requested and caused the Company ~~Counsel~~ Counsel, to furnish to the Manager, on ~~every date~~ the dates specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, in form and substance reasonably satisfactory to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in TexasManager. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to (c) The Manager shall have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (received from ▇▇▇.▇▇ ▇▇▇~~.▇▇▇/~~▇ & ▇▇▇▇▇▇▇▇~~▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof~~, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding counsel for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The Company shall have requested and caused Maryland Counsel to furnish to the Manager, on every date specified in Section 4(m) of this Agreement, ~~its opinion~~such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the ~~Shares by~~ Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company ~~and consummation~~ shall have furnished to such counsel such documents as they request for the purpose of ~~the transactions contemplated by this Agreement, other than~~ enabling them to pass upon such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreementmatters. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chairman of the Board, the President, the Chief Executive Officer or the ~~President and the~~ principal financial or principal accounting officer ~~of the Company, on behalf~~ of the Company, dated as of such date, to the effect that the signers of such certificate have carefully examined the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (iii) since the date of the most recent financial statements included in the Disclosure Package, there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus. (e) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(m) hereof, the Comfort Letter that is required to be delivered pursuant to Section 4(m) hereof (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance reasonably satisfactory to the Manager. (f) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease in the financial statement items specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto). (g) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. (h) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (i) The Shares shall have been listed and admitted and authorized for trading on Nasdaq, and satisfactory evidence of such actions shall have been provided to the Manager. (j) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone, facsimile or electronic mail and confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Manager, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on each such date as provided in this Agreement.

Appears in 1 contract

Sources: Equity Distribution Agreement (Millendo Therapeutics, Inc.)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of ~~Delivery~~Delivery (except to the extent such representations and warranties expressly relate to the specific earlier date (in which case such representations and warranties shall be true and correct as of such specified earlier date)), (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(x) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ LLP, outside counsel for the Company, to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its letter, dated as of such date and addressed to the Manager, to the effect that the Registration Statement and the Prospectus (other than the financial statements and other financial, accounting and statistical information contained or incorporated by reference in the Registration Statement or the Prospectus, as to which such counsel need not provide negative assurance) comply as to form in all material respects with the applicable requirements of the Act and the Exchange Act and the respective rules thereunder; and such counsel has no reason to believe that on the Effective Date the Registration Statement contained any untrue statement of a material fact or omitted to state any material fact required to be stated therein or necessary in order to make the statements therein not misleading or that the Prospectus as of its date and as of the date of such letter included or includes any untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (in each case, other than the financial statements and other financial or accounting information contained or incorporated by reference in the Registration Statement or the Prospectus, as to which such counsel need not provide negative assurance); such counsel has no reason to believe that the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such letter, contained any untrue statement of a material fact or omitted to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading (other than the financial statements and other financial or accounting information contained or incorporated by reference in the Disclosure Package, as to which such counsel need not provide negative assurance); (c) The Company ~~Counsel~~ shall have requested and caused ▇▇▇▇▇ ▇▇▇▇ LLP, outside counsel for the Company, to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: ~~1. Based solely on certificates of public officials,~~ (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became has become effective under the Act; any required filing of the Base Prospectus and the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); ~~and, based solely on a review~~ to the knowledge of ~~the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof~~such counsel, no stop order suspending the effectiveness of the Registration Statement ~~and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus~~ or any ~~amendment or supplement thereto,~~ notice objecting to its use has been issued, ~~nor has any proceeding~~ no proceedings for ~~the~~ that purpose have been instituted or ~~threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance.~~threatened; (ii) based solely on its review of a certificate from the Secretary of State of the State of Delaware, the Company is validly existing and in good standing under the laws of the State of Delaware; (iii) the Company has the corporate power and authority under the DGCL to conduct its business as described in the Disclosure Package and the Prospectus; (iv) the Company has the corporate power and authority to execute and deliver the Agreement and to consummate the transactions contemplated thereby under the DGCL; (v) this Agreement has been duly authorized, executed and delivered by the Company; (vi) neither the execution and delivery by the Company of this Agreement nor the consummation of the transactions contemplated hereby, including the issuance and sale of the Shares: (A) conflicts with its charter or by-laws or (B) constitutes a violation of, or a default under, any of the agreements that are listed on a schedule to such opinion; (vii) neither the execution and delivery by the Company of this Agreement nor the consummation by the Company of the transactions contemplated hereby, including the issuance and sale of the Shares: (A) violates any law, rule or regulation of the State of New York or the United States of America, or the DGCL, provided that no opinion shall be expressed as to federal or state securities laws other than as set forth in paragraph (i) above or (B) requires the consent, approval, licensing or authorization of, or any filing, recording or registration with, any governmental authority under any law, rule or regulation of the State of New York or the United States of America, or the DGCL, except for those consents, approvals, licenses and authorizations already obtained and those filings, recordings and registrations already made or as may be required under federal or state securities or Blue Sky laws as to which we express no opinion; (viii) the Company is not and, solely after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in the Disclosure Package, will not be an “investment company” as such term is defined in the Investment Company Act of 1940, as amended; (ix) the Shares conform to the description thereof contained in the Disclosure Package and the Prospectus under the caption “Description of Capital Stock”; and (x) the Company’s authorized equity capitalization is as set forth in the Disclosure Package and the Prospectus; the outstanding shares of Common Stock have been duly and validly authorized and issued and are fully paid and nonassessable; the Shares have been duly and validly authorized, and, when issued and delivered to and paid for by the Manager pursuant to this Agreement and any Terms Agreement, will be fully paid and nonassessable; the holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares; and In rendering such opinion, such counsel may ~~state that its opinion is limited~~ rely (A) as to matters ~~governed by~~ involving the ~~federal~~ application of laws of any jurisdiction other than the State of Delaware or the Federal laws of the United ~~States~~ States, to the extent they deem proper and specified in such opinion, upon the opinion of ~~America~~other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Manager and (B) as to matters of fact, to the ~~internal laws~~ extent they deem proper, on certificates of responsible officers of the ~~State of New York~~Company and public officials. References to the Prospectus in paragraph (b) and this paragraph (c) shall also include any supplements thereto at the Settlement Date. (d) The Company shall have requested and caused ▇▇▇▇▇▇ ▇▇▇▇▇, ~~the internal laws~~ general counsel of the ~~State of California and the Delaware General Corporation Law. Such counsel shall also have furnished~~ Company to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The Company shall have requested and caused Maryland Counsel to furnish to the Manager, on every date specified in Section 4(m) of this Agreement, its her opinion, dated as of such date and addressed to the Manager, to the effect that: (i) ~~The~~ based solely on her review of the copies of certificates from public officials in the state of incorporation or formation of each subsidiary of the Company ~~has been duly incorporated and~~ listed on a schedule to her opinion, each such subsidiary is a corporation or limited liability company validly existing ~~as a corporation~~ and in good standing under the laws of the ~~State~~ state of ~~Maryland.~~its incorporation or formation, as applicable, listed opposite its name on such schedule; to her knowledge, there are no legal or governmental proceedings pending to which the Company is a party or to which any of it property is subject, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and (ii) ~~The~~ based solely on her review of the copies of certificates from public officials in each state in which the Company ~~has~~ is required to qualify as a foreign corporation, the ~~corporate power~~ Company is duly qualified as a foreign corporation to transact business and ~~authority to own or lease its properties, to conduct its business as described~~ is in ~~the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement~~good standing in each such state. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreement. (de) The Company shall have requested and caused ~~Tax Counsel~~ ▇▇▇▇▇▇ ▇▇▇▇▇, general counsel of the Company, with respect to state regulatory matters, to furnish to the Manager, on every date specified in Section ~~4(n~~4(l) of this Agreement, ~~its~~ her opinion, dated as of such date and addressed to the Manager, ~~and in form as set forth on Exhibit A.~~to the effect that: (ei) ~~The~~ each of the Company ~~shall have furnished~~ and its subsidiaries validly holds all Authorizations necessary or ~~caused~~ required under Applicable Laws for the Company and its subsidiaries to conduct their business as currently conducted and as proposed to be ~~furnished~~ conducted, including the incumbent local exchange services, competitive local exchange services, long distance service, dial-up and DSL internet access and other communication services provided by the Company and its subsidiaries (the “Company Authorizations”) except where the absence of such Company Authorizations will not have a Material Adverse Effect on the Company; except as would not be material to ~~the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of~~ the Company, ~~signed by~~ the ~~Chief Executive Officer~~ Company Authorizations are in full force and effect and I have no reason to believe that the Company Authorizations will not be renewed in the ordinary course. As used herein, (1) “Authorization” means any certificate, concession, cable and other franchise, consent, exemption, order, permit, license, authorization or ~~the President~~ other approval of and ~~the principal financial or accounting officer~~ from a Governmental Authority; (2) “Applicable Law” means any of the ~~Company~~statutes, rules, regulations, policies, orders, court or administrative agency decisions and interpretations, or other laws of a Governmental Authority, including, without limitation, communications and environmental laws and regulations, provided that “Applicable Law” shall not include any federal or state securities laws or tax laws; and (3) “Governmental Authority” means all applicable state, local and other governmental authorities (including the Public Utility Commission thereof), all self-regulatory governmental organizations, all cable franchising authorities and all courts and other tribunals in the states listed on ~~behalf of~~ a schedule to such opinion that have jurisdiction over the ~~Company, dated as of such date, to the effect that the signers of such certificate have examined the Registra~~Company and its subsidiaries;

Appears in 1 contract

Sources: Equity Distribution Agreement (Windstream Holdings, Inc.)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable ~~Time,~~ Time and Settlement ~~Date and Time of Delivery~~Date, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(t) of this Agreement; any ~~other~~ material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the Act shall have been instituted ~~or threatened~~or, to the knowledge of the Company, be threatened by the Commission. (ib) The Company shall have requested and caused ~~the~~ Company Counsel to furnish to the Manager, on every date specified in Section 4(l) of this ~~Agreement~~Agreement subject to Section 4(r), ~~its opinion, dated as of such date~~ a written opinion and ~~addressed~~ disclosure letter in form and substance reasonably satisfactory to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to (c) The Manager shall have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/received from ▇▇▇▇▇▇, ▇▇▇▇/▇ & ▇▇▇▇▇▇~~▇▇▇▇.▇▇▇▇▇) on the date hereof~~▇ LLP, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding counsel for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The Company shall have requested and caused Maryland Counsel to furnish to the Manager, on every date specified in Section 4(m) of this ~~Agreement~~Agreement subject to Section 4(r), ~~its opinion~~such opinion or opinions and disclosure letter or letters, dated as of such date and addressed to the Manager, with respect to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the ~~Shares by~~ Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company ~~and consummation~~ shall have furnished to such counsel such documents as they request for the purpose of ~~the transactions contemplated by this Agreement, other than~~ enabling them to pass upon such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreementmatters. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A.[Reserved.] (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this ~~Agreement~~Agreement subject to Section 4(r), a certificate of the Company, signed by ~~the Chief Executive Officer or the President and the principal financial or accounting~~ an executive officer ~~of the Company, on behalf~~ of the Company, dated as of such date, to the effect that the ~~signers~~ ▇▇▇▇▇▇ of such certificate ~~have~~ has carefully examined the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the Company has received no stop order suspending the effectiveness of the Registration Statement, and no proceedings for such purpose or pursuant to Section 8A of the Act have been instituted or, to the Company’s knowledge, are threatened by the Commission; (ii) since the date of the most recent financial statements incorporated by reference in the Prospectus and the Disclosure Package, there has been no event or condition of a type described in Section 2(k) hereof (a “Material Adverse Change”), except as set forth in or contemplated in the Disclosure Package and the Prospectus; (iii) the representations, warranties and covenants set forth in Section 2 of this Agreement are true and correct with the same force and effect as though expressly made on and as of such date; and (iv) except as waived by the Agent in writing, the Company has complied with all the agreements hereunder and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such date. (f) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(o) hereof, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance reasonably satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in AS 6101, as well as confirming that they have performed a review of any unaudited interim financial information of the Company included in the Registration Statement, the Disclosure Package and the Prospectus in accordance with AS 4105. References to the Prospectus in this paragraph (f) include any supplement thereto at the date of such comfort letter. (g) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein or in subsequent reports filed with the Commission and incorporated by reference therein, there shall not have been any Material Adverse Change, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto) the effect of which is, in the reasonable judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by this Agreement and the Prospectus. (h) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (i) The Shares shall have been listed and admitted and authorized for trading on the Exchange, and satisfactory evidence of such actions shall have been provided to the Manager. (j) The Company shall have furnished or caused to be furnished to the Manager, if requested by the Manager, in connection with each Representation Date on which the Company is required to provide a certificate under section Section 4(k) of this Agreement, a certificate of the Company, signed by the chief financial officer or similar officer of the Company, dated as of such date, in form and substance satisfactory to the Manager and the Company, providing “management comfort” with respect to certain financial information included in the Registration Statement and the Prospectus, as applicable, to the extent such financial information is not covered by an accountants’ “comfort letter” delivered as of such date pursuant to Section 6(f) of this Agreement. (k) In connection with each Representation Date, the Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request and which are usually and customarily furnished by an issuer of securities in connection with a securities offering of the type contemplated hereby. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date, by the Manager, subject to Section 8 hereof. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered to ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Manager, on each such date as provided in this Agreement.

Appears in 1 contract

Sources: Equity Distribution Agreement (Global Ship Lease, Inc.)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(r) of this Agreement; any ~~other~~ material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the Act shall have been instituted or threatened. (ib) The Company shall have requested and caused ~~the~~ (i) Company Counsel to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, ~~its opinion,~~ opinions and disclosure letter dated as of such date and addressed to the ~~Manager~~Manager collectively covering the opinions and disclosure letter the form of which are attached as Exhibit A, provided that no such opinions or disclosure letter shall be required to be furnished on any such date if the ~~effect that: 1. Based solely~~ Manager does not receive the opinions specified in clause (c) below on ~~certificates of public officials~~the same date, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority Company Tax Counsel to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished furnish to the Manager, on every date specified in Section 4(l) of this Agreement, ~~a written statement,~~ an opinion dated as of such date and addressed to the Manager ~~and dated~~ covering any tax-related matters as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Datemay reasonably require. (c) The ~~Company~~ Manager shall have ~~requested and caused Maryland Counsel to furnish to~~ received from Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Manager, on every date specified in Section 4(m) of this Agreement, ~~its opinion~~such opinion or opinions and disclosure letter or letters, dated as of such date and addressed to the Manager, with respect to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the ~~Shares by~~ Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company ~~and consummation~~ shall have furnished to such counsel such documents as they request for the purpose of ~~the transactions contemplated by this Agreement, other than~~ enabling them to pass upon such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreementmatters. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by ~~the Chief Executive Officer or the President and the principal financial or accounting~~ an executive officer ~~of the Company, on behalf~~ of the Company, dated as of such date, to the effect that the ~~signers~~ signer of such certificate ~~have~~ has carefully examined the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the Company has received no stop order suspending the effectiveness of the Registration Statement, and no proceedings for such purpose or pursuant to Section 8A of the Act have been instituted or, to the Company’s knowledge, threatened by the Commission; (ii) since the date of the most recent financial statements included in the Prospectus and the Disclosure Package, there has been no event or condition of a type described in Section 2(m) hereof (a “Material Adverse Change”), except as set forth in or contemplated in the Disclosure Package and the Prospectus; (iii) the representations, warranties and covenants set forth in Section 2 of this Agreement are true and correct with the same force and effect as though expressly made on and as of such date; and (iv) the Company and its subsidiaries have complied with all the agreements hereunder and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such date. (e) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(n) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures contained in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72, as well as confirming that they have performed a review of any unaudited interim financial information of the Company included in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards No. 100. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(o) of this Agreement, a certificate, signed by the chief financial officer of the Company, dated as of such date, providing “management comfort” with respect to certain financial data included or incorporated by reference in the Disclosure Package and the Prospectus. (g) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been any Material Adverse Change, except as set forth in or contemplated in the Disclosure Package (exclusive of any amendment or supplement thereto) the effect of which is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto). (h) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (i) The Shares shall have been listed and admitted and authorized for trading on the NASDAQ, and satisfactory evidence of such actions shall have been provided to the Manager. (j) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Designated Manager such further information, certificates and documents as the Designated Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Manager, at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on each such date as provided in this Agreement.

Appears in 1 contract

Sources: Equity Distribution Agreement (Keurig Dr Pepper Inc.)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable ~~Time,~~ Time and Settlement ~~Date and Time of Delivery~~Date, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(p) of this Agreement; any ~~other~~ material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; ~~and~~ no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the Act shall have been instituted or ~~threatened~~threatened by the Commission; no stop order suspending or preventing the use of the Disclosure Package, Prospectus or any Issuer Free Writing Prospectus shall have been instituted or, to the Company’s knowledge, threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction. (ib) The Company shall have requested and caused ~~the~~ Company Counsel to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, ~~its opinion~~an opinion and a negative assurance letter, ~~dated as of such date~~ each in the form and ~~addressed~~ substance reasonably satisfactory to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to (c) The Manager shall have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (received from ▇▇▇.▇▇~~▇.▇▇▇/~~▇ ▇▇▇▇▇▇▇ ▇▇▇▇~~/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof~~▇ LLP, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding counsel for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The Company shall have requested and caused Maryland Counsel to furnish to the Manager, on every date specified in Section 4(m) of this Agreement, ~~its opinion~~such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the ~~Shares by~~ Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company ~~and consummation~~ shall have furnished to such counsel such documents as they request for the purpose of ~~the transactions contemplated by this Agreement, other than~~ enabling them to pass upon such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreementmatters. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the ~~Chief Executive Officer~~ chief executive officer or the President ~~and the principal financial or accounting officer~~ of the Company, ~~on behalf~~ and of the chief financial or chief accounting officer of the Company, dated as of such date, to the effect that the signers of such certificate have carefully examined the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the Company has received no stop order suspending the effectiveness of the Registration Statement, and no proceedings for such purpose or pursuant to Section 8A of the Act have been instituted or, to the Company’s knowledge, threatened by the Commission; (ii) since the date of the most recent financial statements included in the Prospectus and the Disclosure Package, there has been no event or condition of a type described in Section 2(k) hereof (a “Material Adverse Change”), except as set forth in or contemplated in the Disclosure Package and the Prospectus; (iii) the representations, warranties and covenants set forth in Section 2 of this Agreement are true and correct with the same force and effect as though expressly made on and as of such date; and (iv) the Company and its subsidiaries have complied with all the agreements hereunder and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such date. (e) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(n) hereof to the extent financial information audited or reviewed by such firms is included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus, as amended and supplemented to the date of such letter, and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures contained in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Auditing Standards 6101: Letters for Underwriters and Certain Other Requesting Parties, as well as confirming that they have performed a review of any unaudited interim financial information of the Company included in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards No. 100. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) Material Adverse Change, except as set forth in or contemplated in the Disclosure Package (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto). (g) If applicable, FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (h) The Shares shall have been listed and admitted and authorized for trading on the NASDAQ. (i) Prior to each Settlement Date, the Company shall have furnished to the Designated Manager such further information, certificates and documents as the Designated Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.

Appears in 1 contract

Sources: Equity Distribution Agreement (Beyond Meat, Inc.)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy in all material respects (except to the extent already qualified by materiality, in which case such obligations shall be subject to the accuracy in all respects) of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) the accuracy of the statements of the Company made in any certificates pursuant to the provisions hereof, (iii) the performance by the Company of its obligations hereunder and (~~iii~~iv) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 3(a)(ix) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the ~~Act,~~ Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The Company shall have requested and caused (i) ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the ~~Company Counsel~~ Company, to furnish to the Manager, on every date specified in Section ~~4(l~~4(l)(i) of this Agreement, its ~~opinion~~opinion and negative assurance letter, dated as of such date and addressed to the Manager, substantially to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth ~~opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A~~ in Exhibits A-1 and A-2 and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇ ▇~~▇▇▇/~~. ▇▇▇▇▇~~▇▇▇▇▇.▇▇▇▇▇) on the date hereof~~, ~~no stop order suspending the effectiveness~~ Senior Vice President, Deputy General Counsel and Corporate Secretary of the ~~Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto~~Company, ~~has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject~~ to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished furnish to the Manager, on every date specified in Section ~~4(l~~4(l)(ii) of this Agreement, ~~a written statement~~his opinion assurance letter, ~~addressed to the Manager and~~ dated as of such ~~date, in form~~ date and ~~substance satisfactory~~ addressed to the Manager, substantially to the effect ~~that~~ set forth in Exhibit A-3, and (xiii) ~~such counsel has acted as~~ gaming counsel to the Company in ~~connection with the preparation of the Registration Statement~~each jurisdiction listed on Schedule III hereto, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The Company shall have requested and caused Maryland Counsel to furnish to the Manager, on every date specified in Section 4(m) of this Agreement, ~~its opinion~~each of their opinions, dated as of such date and addressed to the Manager, substantially to the effect ~~that: (i) The Company has been duly incorporated and is validly existing as a corporation~~ set forth in ~~good standing under the laws of the State of Maryland~~Exhibit A-4. (iic) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreement. (d) The Company Manager shall have ~~requested and caused Tax Counsel to furnish to~~ received from ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Manager, on every date specified in Section 4(n) of this Agreement, ~~its opinion~~such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and ~~in form~~ sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as ~~set forth on Exhibit A.~~the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (ed) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by ~~the Chief Executive Officer or the President and the principal financial or accounting officer~~ two officers of the Company, ~~on behalf~~ one of whom is the principal financial, treasurer or accounting officer of the Company, dated as of such date, to the effect that the signers of such certificate have carefully examined the ~~Registra~~Registration Statement, the Disclosure Package, the Prospectus any supplement or amendment thereto, as well as each electronic road show used in connection with the offering of the Shares, and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct in all material respects (except to the extent already qualified by materiality, in which case such representations and warranties are true and correct in all respects) on and as of such date with the same effect as if made on such date and the Company has complied in all material respects with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and is outstanding and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus (exclusive of any supplement thereto), there has been no material adverse change or any development involving a prospective material adverse change, in or affecting the condition (financial or otherwise), business, results of operations or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus (exclusive of any amendment thereto). (e) The Company shall have requested and caused Deloitte & Touche LLP to have furnished to the Manager, on every date specified in Section 4(o) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, each in form and substance satisfactory to the Manager and confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the applicable rules and regulations adopted by the Commission thereunder and confirming certain matters with respect to the audited and unaudited financial statements and other financial and accounting information contained in the Disclosure Package and the Prospectus, including any amendment or supplement thereto as of the date of the applicable letter. (f) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), business, results of operations or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto). (g) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. (h) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (i) When issued and delivered pursuant to the Agreement and any applicable Terms Agreement, the Shares will be listed and admitted and authorized for trading on the Nasdaq. (j) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Manager, at ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on each such date as provided in this Agreement.

Appears in 1 contract

Sources: Equity Distribution Agreement (CAESARS ENTERTAINMENT Corp)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the ~~Company~~ Partnership contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the ~~Company~~ Partnership of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Units; any ~~other~~ material required to be filed by the ~~Company~~ Partnership pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Partnership shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(l) hereof, a certificate of the Partnership, signed on behalf of the Partnership by any two of the Chief Executive Officer, any President, any Executive Vice President, any Senior Vice President or any Vice President of the General Partner, dated as of such date, to the effect that the signers of such certificate have carefully examined the Registration Statement and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) subject to modification to incorporate the disclosures contained in the Registration Statement and the Prospectus, in each case as amended or supplemented as of such date, the representations and warranties of the Partnership in this Agreement are true and correct on and as of such date with the same effect as if made on such date; and the Partnership has complied in all material respects (except with respect to agreements and conditions that are qualified by materiality, which shall be true and correct in all respects) with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Partnership’s knowledge, threatened; and (iii) since the date of the most recent financial statements included in the Prospectus, there has not been any change, or any development involving a prospective change, in the partnership interests, capital stock, or long-term debt of the Partnership or any of its subsidiaries that would reasonably be expected to cause a Material Adverse Effect, or any change in the general affairs, management, financial position, results of operations, cash flows or working capital of the Partnership and its subsidiaries, whether or not arising from transactions in the ordinary course of business, that would reasonably be expected to cause a Material Adverse Effect, other than as set forth in or contemplated by the Prospectus. (c) The ~~Company~~ Partnership shall have requested and caused the ~~Company~~ Partnership Counsel to furnish to the Manager, on every date specified in Section ~~4(l~~4(m) ~~of this Agreement~~hereof, its opinion, dated as of such date and addressed to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise form set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuanceAnnex II hereto. (iid) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel The Partnership shall ~~also~~ have furnished to the Manager, on every date specified in Section ~~4(l~~4(n) hereof, an opinion of ~~this Agreement~~the General Counsel, ~~a written statement,~~ dated as of such date and addressed to the Manager, in the form set forth in Annex III hereto. (e) The Manager shall have received from Manager’s Counsel on every date specified in Section 4(o) hereof, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Units, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Partnership shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (f) The Partnership shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(p) hereof and to the extent reasonably requested by the Manager, with advance notice to the Partnership in connection with any offering of the Units, letters (which may refer to letters previously delivered to the Manager) containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus, dated as of such date, in form and substance satisfactory to the Manager, ; provided that the cut-off date for the procedures performed by such accountants and described in such letters shall be a date not more than five days prior to the ~~effect that~~ date of such letter. (xg) ~~such counsel has acted as counsel~~ Subsequent to the ~~Company~~ respective dates as of which information is given in ~~connection with the preparation of~~ the Registration ~~Statement, the Disclosure Package~~ Statement and the ~~Prospectus and has reviewed the Registration Statement~~Prospectus, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that there shall not have occurred (i) any change, or any development involving a prospective change that would reasonably be expected to have a Material Adverse Effect, not contemplated by the ~~Registration Statement~~Prospectus, on which in the ~~effective date~~Manager’s opinion, ~~pursuant~~ would materially and adversely affect the market for the Units, or (ii) any event or development relating to ~~Rule 430B(f)(2) under the Act,~~ or involving any of the ~~part~~ PNG Entities or any executive officer or director of any of such entities that makes any statement made in the Prospectus untrue or which, in the opinion of the ~~Registration Statement relating to the Shares for purposes of the liability of~~ Partnership and its counsel or the Manager ~~under Section 11~~ and its counsel, requires the making of any addition to or change in the ~~Act~~ Prospectus in ~~connection with the sale of the Shares, contained an untrue statement of a material fact or omitted~~ order to state a material fact required by the Act or any other law to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; , if amending or ~~(iii)~~ supplementing the ~~Disclosure Package~~Prospectus to reflect such event or development would, ~~as amended or supplemented at~~ in the ~~Execution Time or at any applicable date related to the delivery of such~~ Manager’s opinion, ~~contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make~~ materially and adversely affect the ~~statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility~~ market for the ~~accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus~~ Units. (~~except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d~~h) ~~with respect to certain tax matters) and (b) express~~ FINRA shall not have raised any ~~belief~~ objection with respect to the ~~financial statements~~ fairness and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The Company shall have requested and caused Maryland Counsel to furnish to the Manager, on every date specified in Section 4(m) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws reasonableness of the ~~State of Maryland. (ii) The Company has the corporate power~~ terms and ~~authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations~~ arrangements under this Agreement. (~~iii~~i) The Units shall have been listed and admitted and authorized ~~capital stock~~ for trading on the NYSE, and satisfactory evidence of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects such actions shall have been provided to the ~~description thereof contained in the Disclosure Package~~ Manager. (j) Prior to each Settlement Date and ~~the Prospectus under the captions “General Description~~ Time of ~~the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K~~Delivery, as applicable~~. (iv) The sale~~ , the Partnership shall have furnished to the Manager such further information, certificates and ~~issuance~~ documents as the Manager may reasonably request. If any of the ~~Shares~~ conditions specified in this Section 6 shall not have been ~~duly authorized by all necessary corporate action on the part of the Company under its charter~~ fulfilled when and ~~bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for~~ as ~~contemplated by the Directors’ Resolutions and~~ provided in this Agreement, ~~such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock~~ or if any of the ~~Company are not entitled to preemptive~~ opinions and certificates mentioned in this Section 6 or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of elsewhere in this Agreement ~~have been duly authorized by all necessary corporate action on the part of the Company under its charter~~ shall not be reasonably satisfactory in form and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreement. (d) The Company shall have requested and caused Tax Counsel to furnish substance to the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Partnership in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered to the Manager by this Section 6 shall be delivered at the office of Partnership’s Counsel, at ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., ▇▇▇▇ ▇▇▇▇▇▇ ▇▇., Houston, Texas 77002, on ~~every~~ each such date ~~specified~~ as provided in ~~Section 4(n) of~~ this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chief Executive Officer or the President and the principal financial or accounting officer of the Company, on behalf of the Company, dated as of such date, to the effect that the signers of such certificate have examined the Registra.

Appears in 1 contract

Sources: Equity Distribution Agreement (Paa Natural Gas Storage Lp)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(q) of this Agreement; any ~~other~~ material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; ~~and~~ no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the Act shall have been instituted or ~~threatened~~threatened by the Commission; no stop order suspending or preventing the use of the Disclosure Package, Prospectus or any Issuer Free Writing Prospectus shall have been instituted or, to the Company’s knowledge, threatened by the Commission; and all requests for additional information on the part of the Commission shall have been complied with to your reasonable satisfaction. (ib) The Company shall have requested and caused ~~the~~ Company Counsel to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, ~~its opinion~~an opinion and a negative assurance letter, ~~dated as of such date~~ each in the form and ~~addressed~~ substance reasonably satisfactory to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to (c) The Managers shall have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (received from ▇▇▇.▇▇ ▇▇▇~~.▇▇▇/~~▇ & ▇▇▇▇▇▇▇~~▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof~~▇ LLP, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding counsel for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The Company shall have requested and caused Maryland Counsel to furnish to the ManagerManagers, on every date specified in Section 4(m) of this Agreement, ~~its opinion~~such opinion or opinions and disclosure letter or letters, dated as of such date and addressed to the ~~Manager~~Managers, with respect to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the ~~Shares by~~ Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Managers may reasonably require, and the Company ~~and consummation~~ shall have furnished to such counsel such documents as they request for the purpose of ~~the transactions contemplated by this Agreement, other than~~ enabling them to pass upon such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreementmatters. (d) The Company shall have ~~requested and~~ furnished or caused ~~Tax Counsel~~ to ~~furnish~~ be furnished to the Manager, on every date specified in Section ~~4(n~~4(k) of this Agreement, ~~its opinion~~a certificate of the Company, signed by the chief executive officer or the President of the Company, and of the chief financial or chief accounting officer of the Company, dated as of such ~~date and addressed~~ date, to the ~~Manager~~effect that the signers of such certificate have carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the Company has received no stop order suspending the effectiveness of the Registration Statement, and no proceedings for such purpose or pursuant to Section 8A of the Act have been instituted or, to the Company’s knowledge, threatened by the Commission; (ii) since the date of the most recent financial statements included in ~~form~~ the Prospectus and the Disclosure Package, there has been no event or condition of a type described in Section 2(k) hereof (a “Material Adverse Change”), except as set forth in or contemplated in the Disclosure Package and the Prospectus; (iii) the representations, warranties and covenants set forth in Section 2 of this Agreement are true and correct with the same force and effect as though expressly made on ~~Exhibit A.~~and as of such date; and (iv) the Company and its subsidiaries have complied with all the agreements hereunder and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such date. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the ~~Chief Executive Officer or the President and the principal~~ chief financial or chief accounting officer ~~of the Company, on behalf~~ of the Company, dated as of such date, with respect to certain financial data contained in the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto, providing “management comfort” with respect to such information, in form and substance reasonably satisfactory to the ~~effect that~~ Manager. (f) The Company shall have requested and caused the ~~signers~~ Accountants to have furnished to the Manager, on every date specified in Section 4(n) hereof to the extent financial information audited or reviewed by such firms is included or incorporated by reference in the Registration Statement, the Disclosure Package and the Prospectus, as amended and supplemented to the date of such ~~certificate~~ letter, and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, which letters shall cover, without limitation, the various financial statements and disclosures contained in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72, as well as confirming that they have ~~examined~~ performed a review of any unaudited interim financial information of the ~~Registra~~Company included in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Statement on Auditing Standards No. 100. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (g) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) Material Adverse Change, except as set forth in or contemplated in the Disclosure Package (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto). (h) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (i) The Shares shall have been listed and admitted and authorized for trading on the NASDAQ. (j) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Designated Manager such further information, certificates and documents as the Designated Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing.

Appears in 1 contract

Sources: Equity Distribution Agreement (Beyond Meat, Inc.)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(x) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The ~~Company~~ Manager shall have ~~requested and caused~~ received the opinions of Company Counsel to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section ~~6(d~~4(l) ~~with respect~~ on or before the date on which such delivery of such opinions are required pursuant to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement DateSection 4(l). (c) The ~~Company~~ Manager shall have ~~requested and caused Maryland~~ received the opinion of IP Counsel or officer’s certificate required to ~~furnish~~ be delivered pursuant to ~~the Manager, on every date specified in~~ Section 4(m) ~~of this Agreement, its opinion, dated as~~ on or before each date on which such delivery of such ~~date and addressed to the Manager, to the effect that: (i) The Company has been duly incorporated and~~ opinion or officer’s certificate is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland required pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (viiSection 4(m), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreement. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chairman of the Board or the Chief Executive Officer ~~or the President~~ and the principal financial or accounting officer ~~of the Company, on behalf~~ of the Company, dated as of such date, to the effect that the signers of such certificate have carefully examined the ~~Registra~~Registration Statement and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (iii) since the date of the most recent financial statements included in the Prospectus, there has been no material adverse effect on the condition (financial or otherwise), business prospects, earnings, business or properties of the Company and its subsidiaries, if any, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus. (e) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4 (n) hereof, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance reasonably satisfactory to the Manager, confirming that they are independent accountants within the meaning of the Securities Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of any unaudited interim financial information of the Company included or incorporated by reference in the Registration Statement and the Prospectus in accordance with Statement on Auditing Standards No. 100. (f) Since the respective dates as of which information is disclosed in the Registration Statement and the Prospectus, except as otherwise stated therein, there shall not have been any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries, if any, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any amendment or supplement thereto) the effect of which is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Prospectus (exclusive of any amendment or supplement thereto). (g) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436 (g) under the Securities Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. (h) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (i) The Shares shall have been listed and admitted and authorized for trading on Nasdaq, and satisfactory evidence of such actions shall have been provided to the Manager. (j) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Manager, at ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, on each such date as provided in this Agreement.

Appears in 1 contract

Sources: Equity Distribution Agreement (Tocagen Inc)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 3(a)(viii) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The Company shall have requested and caused the Company ~~Counsel~~ Counsel, to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its ~~opinion~~written opinions, substantially similar to the form attached hereto as Exhibit 6(b)(i) and Exhibit 6(b)(ii), dated as of such date and addressed to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The ~~Company~~ Manager shall have ~~requested and caused Maryland Counsel to furnish to~~ received from ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Manager, on every date specified in Section 4(m) of this Agreement, ~~its opinion~~such opinions, dated as of such date and addressed to the Manager, with respect to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the ~~Shares by~~ Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company ~~and consummation~~ shall have furnished to such counsel such documents as they request for the purpose of ~~the transactions contemplated by this Agreement, other than~~ enabling them to pass upon such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreementmatters. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chairman of the Board, the Chief Executive ~~Officer~~ Officer, the President or the ~~President~~ Executive Vice President, General Counsel and Secretary and the principal financial or accounting officer of the Company, ~~on behalf~~ or such other executive officers of the ~~Company~~Company reasonably acceptable to the Manager, dated as of such date, to the effect that the signers of such certificate have carefully examined the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (iii) since the date of the most recent financial statements included in or incorporated by reference into the Registration Statement and the Disclosure Package there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement and the Disclosure Package. (e) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(n) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance reasonably satisfactory to the Manager, confirming that they are independent accountants within the meaning of the Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of any unaudited interim financial information of the Company included or incorporated by reference in the Registration Statement and the Prospectus in accordance with the PCAOB Auditing Standards No. 4105, Reviews of Interim Financial Information (“PCAOB AS 4105”) and stating in effect that: (i) in their opinion the audited financial statements and financial statement schedules included or incorporated by reference in the Registration Statement and the Prospectus and reported on by them comply as to form with the applicable accounting requirements of the Act and the Exchange Act and the related rules and regulations adopted by the Commission; (ii) on the basis of a reading of the latest unaudited financial statements made available by the Company and its subsidiaries; their limited review, in accordance with standards established under PCAOB 4105, of the unaudited interim financial information included or incorporated by reference in the Registration Statement and the Prospectus; carrying out certain specified procedures (but not an examination in accordance with generally accepted auditing standards) which would not necessarily reveal matters of significance with respect to the comments set forth in such letter; a reading of the minutes of the meetings of the stockholders, directors and the audit committee of the Company and the subsidiaries; and inquiries of certain officials of the Company who have responsibility for financial and accounting matters of the Company and its subsidiaries as to transactions and events subsequent to the date of the most recent audited financial statements included or incorporated by reference in the Registration Statement and the Prospectus, nothing came to their attention which caused them to believe that: (A) any unaudited financial statements included or incorporated by reference in the Registration Statement and the Prospectus do not comply as to form with applicable accounting requirements of the Act and with the related rules and regulations adopted by the Commission with respect to financial statements included or incorporated by reference in Quarterly Reports on Form 10-Q under the Exchange Act; and said unaudited financial statements are not in conformity with generally accepted accounting principles applied on a basis substantially consistent with that of the audited financial statements included or incorporated by reference in the Registration Statement and the Prospectus; (B) with respect to the period subsequent to the date of the most recent financial statements (other than any capsule information), audited or unaudited, included or incorporated by reference in the Registration Statement and the Prospectus, there were any changes, at a specified date not more than five days prior to the date of the letter, in the capital stock and consolidated debt of the Company or decreases in the stockholders’ equity of the Company as compared with the amounts shown on the consolidated balance sheet dated as of the most recent financial statements included or incorporated by reference in the Registration Statement and the Prospectus included or incorporated by reference in the Registration Statement and the Prospectus, or for the period from such date to such specified date there were any decreases, as compared with the appropriate comparative period in consolidated revenues or in total or per share amounts of consolidated earnings of the Company before extraordinary items or of consolidate earnings except in all instances for changes or decreases set forth in such letter, in which case the letter shall be accompanied by an explanation by the Company as to the significance thereof unless said explanation is not deemed necessary by the Manager; (C) the information included or incorporated by reference in the Registration Statement and the Prospectus in response to Regulation S-K, Item 301 (Selected Financial Data) and Item 503(d) (Ratio of Earnings to Fixed Charges) is not in conformity with the applicable disclosure requirements of Regulation S-K; and (D) To the extent capsule financial information is included or incorporated by reference in the Registration Statement and the Prospectus, the unaudited capsule information does not agree with the amounts set forth in the unaudited financial statements for the same periods or were not determined on a basis substantially consistent with that of the corresponding amounts in the audited financial statements included or incorporated by reference in the Registration Statement and the Prospectus; and (iii) they have performed certain other specified procedures as a result of which they determined that certain information of an accounting, financial or statistical nature (which is limited to accounting, financial or statistical information derived from the general accounting records of the Company and its subsidiaries) set forth or incorporated by reference in the Registration Statement and the Prospectus and in Exhibit 12 to the Registration Statement agrees with the accounting records of the Company and its subsidiaries, excluding any questions of legal interpretation. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) Since the respective dates as of which information is disclosed in the Registration Statement and the Disclosure Package, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Disclosure Package (exclusive of any amendment or supplement thereto). (g) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b). (h) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. (i) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (j) The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager. (k) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Manager, at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, Attn: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, on each such date as provided in this Agreement.

Appears in 1 contract

Sources: Equity Distribution Agreement (National Retail Properties, Inc.)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the ~~Company~~ Partnership contained herein as of the Execution ~~Time,~~ Time and each Representation Date~~, and as of each Applicable Time, Settlement Date and Time of Delivery~~, (ii) to the performance by the ~~Company~~ Partnership of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b); ) with respect to any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433sale of Offered Units; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The ~~Company~~ Partnership shall have requested and caused the ~~Company Counsel~~ Partnership Counsel, to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its ~~opinion, dated as of such date~~ opinion in form and ~~addressed~~ substance reasonably satisfactory to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described substantially in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken form attached hereto as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance.Exhibit A. (iic) ~~In rendering such opinion~~The Partnership shall have requested and caused the Assistant General Counsel, ~~such counsel may state that its opinion is limited~~ to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished furnish to the Manager, on every date specified in Section 4(l) of this Agreement, ~~a written statement~~her opinion in form and substance reasonably satisfactory to the Manager, substantially in the form attached hereto as Exhibit B. (d) The Manager shall have received from ▇▇▇▇▇ ▇▇▇▇▇ LLP, counsel for the Manager, on every date specified in Section 4(m) of this Agreement, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Offered Units, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Partnership shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (e) The Partnership shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(j) of this Agreement, a certificate of the Partnership, signed by (1) the President and Chief Executive Officer of NuStar GP and (2) the Senior Vice President, Chief Financial Officer and Treasurer of NuStar GP, dated as of such date, ~~in form and substance satisfactory to the Manager,~~ to the effect that ~~(x)~~ the signers of such ~~counsel has acted as counsel to the Company in connection with the preparation of~~ certificate have carefully examined the Registration ~~Statement, the Disclosure Package~~ Statement and the Prospectus and ~~has reviewed~~ any supplements or amendments thereto and this Agreement and that: (i) The representations, warranties and agreements of the Partnership Parties in Section 2 are true and correct on and as of such date, modified as necessary to relate to the Registration ~~Statement~~Statement and the Prospectus as amended as of such date and to reflect such necessary modifications as are not material and approved by the Manager in advance; and that each of the Partnership Parties has complied with all of its respective agreements contained herein and satisfied all of the respective conditions on its part to be performed or satisfied hereunder at or prior to such date; (ii) No stop order suspending the effectiveness of the Registration Statement has been issued; and no proceedings or examination for that purpose have been instituted or, to the knowledge of such officers, threatened; and the Commission has not notified the Partnership of any objection to the use of the form of the Registration Statement or any post-effective amendment thereto; and (iii) They have carefully examined the Registration Statement and the Prospectus, and ~~(y) subject~~ nothing has come to ~~the foregoing, such counsel confirms~~ their attention that would lead them to believe that, ~~on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that~~ (iA) (1) the Registration Statement, as of the Effective Date, or (2) the Prospectus, as of its date and on the ~~effective date~~date of such certificate, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an did or do contain any untrue statement of a material fact and did or ~~omitted~~ do omit to state a material fact required to be stated therein or necessary to make the statements therein not ~~misleading;~~ misleading or (iiB) ~~the Prospectus, as of its date, and as of~~ since the date of ~~such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make~~ the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the most recent financial statements ~~and supporting schedules and other financial and statistical data~~ included or incorporated by reference inin the Prospectus, an event has occurred that should have been set forth in a supplement or ~~omitted from,~~ amendment to the Registration ~~Statement, the Disclosure Package~~ Statement or the ~~Prospectus. References to the~~ Prospectus ~~in this paragraph (b) shall also include any supplements thereto at the Settlement Date~~that has not been so set forth. (cf) The ~~Company~~ Partnership shall have requested and caused ~~Maryland Counsel~~ the Accountants to ~~furnish~~ have furnished to the Manager, on every date specified in Section 4(m) hereof and to the extent requested by the Manager in connection with any offering of ~~this Agreement~~the Offered Units, ~~its opinion, dated as of such date and addressed~~ letters (which may refer to letters previously delivered to the Manager, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreement. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chief Executive Officer or the President and the principal financial or accounting officer of the Company, on behalf of the Company, dated as of such date, in form and substance satisfactory to the ~~effect~~ Manager, (i) confirming that they are independent accountants within the ~~signers~~ meaning of the Securities Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission and the Public Company Accounting Oversight Board and (ii) stating, as of the date of such ~~certificate~~ letter (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the most recent Prospectus Supplement, as of a date not more than five days prior to the date of such letter), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings. (g) Since the respective dates as of which information is disclosed in the Registration Statement and the Prospectus, except as otherwise stated therein, there shall not have ~~examined~~ been (i) any change or decrease specified in the ~~Registra~~letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Partnership and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Offered Units as contemplated by the Registration Statement and the Prospectus. (h) There shall not have been any decrease in the rating of any of the Partnership’s debt securities by any “nationally recognized statistical rating organization” (as that term is used in Section 15E of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. (i) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (j) The Offered Units shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager. (k) The Partnership shall have furnished to the Manager, at each date specified in Section 4(j), such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Partnership in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Manager, at One Shell Plaza, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, or electronically if agreed to by the parties, on each such date as provided in this Agreement.

Appears in 1 contract

Sources: Equity Distribution Agreement (NuStar Energy L.P.)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b); any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (i) The Company shall have requested and caused the Company Counsel to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇w▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The Company shall have requested and caused Maryland Counsel to furnish to the Manager, on every date specified in Section 4(m) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities.” ~~as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”).~~ The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock~~” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable~~.” (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” ~~as supplemented by the information in Item 5.03 of the Form 8-K,~~ and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, ~~orders~~ orders, registrations, qualifications or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this ~~Equity Distribution~~ Agreement. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chief Executive Officer or the President and the principal financial or accounting officer of the Company, on behalf of the Company, dated as of such date, to the effect that the signers of such certificate have examined the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such

Appears in 1 contract

Sources: Equity Distribution Agreement (LTC Properties Inc)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the ~~Company~~ Partnership contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the ~~Company~~ Partnership of its obligations hereunder and (iii) the following additional conditions: ~~(a)~~ 6.1 The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Units; any ~~other~~ material required to be filed by the ~~Company~~ Partnership pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted ~~or threatened. (i) The Company shall have requested and caused the Company Counsel to furnish to the Manager~~or, on every date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of ~~such counsel~~the Partnership, ~~any decree, judgment or order applicable to the Company or any of its Subsidiaries~~threatened. ~~8. To the knowledge of such counsel, there are no actions, suits, claims, investigations~~ 6.2 The Partnership shall have furnished or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required caused to be ~~described~~ furnished the opinions and letters from its counsel and accountants as set forth in Section 4, on the ~~Registration Statement, the Prospectus or the Disclosure Package but are not so described~~dates as set forth in Section 4. 9. 6.3 The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/Manager shall have received from ▇▇▇▇▇ ▇▇▇▇~~▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof~~▇ L.L.P., no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding counsel for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The Company shall have requested and caused Maryland Counsel to furnish to the Manager, on every date specified in Section 4(m) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6Section 4, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreement. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form dates as set forth ~~on Exhibit A.~~in Section 4, and the Partnership shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. ~~(e)~~ 6.4 The ~~Company~~ General Partner shall have furnished or caused to be furnished to the Manager, on every date specified in Section ~~4(k)~~ 4.11 of this Agreement, a certificate ~~of the Company, signed~~ by ~~the Chief Executive Officer or the President~~ its principal executive officer and ~~the~~ principal financial ~~or accounting~~ officer ~~of the Company, on behalf of the Company,~~ dated as of such date, to the effect that the ~~signers~~ signer of such certificate ~~have~~ has carefully examined the ~~Registra~~Registration Statement and the Prospectus and any supplements or amendments thereto and this Agreement and that: a) the representations and warranties of the Partnership in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; b) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued by the Commission and no proceedings for that purpose have been instituted or, to such officer’s knowledge, threatened; c) since the date of the most recent financial statements included in the Prospectus, there has been no material adverse effect on the general affairs, condition (financial or otherwise), results of operations, business, properties, assets or prospects of the Teekay Entities, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus, as amended or supplemented; and d) on those Representation Dates when the opinions referred to in Sections 4.15, 4.16, 4.17 and 4.18 are not provided, that, to such officer’s knowledge, there has not been any material change in the facts on which the opinions in Sections 4.15, 4.16, 4.17 and 4.18 are based. 6.5 The Partnership shall have requested and caused Ernst & Young LLP to have furnished to the Manager, on every date specified in Section 4.20 hereof and to the extent reasonably requested by the Manager in connection with any offering of the Units, comfort letters, dated respectively as of such date, in form and substance reasonably satisfactory to the Manager. 6.6 The Partnership shall have requested and caused KPMG LLP to have furnished to the Manager, on every date specified in Section 4.20 hereof and to the extent reasonably requested by the Manager in connection with any offering of the Units, comfort letters, dated respectively as of such date, in form and substance reasonably satisfactory to the Manager 6.7 Subsequent to the respective dates as of which information is disclosed in the Registration Statement and the Prospectus, except as otherwise stated therein, there shall not have been (i) any adverse change or decrease specified in the letter or letters referred to in Sections 6.5 or 6.6 or (ii) any adverse change, or any development involving a prospective adverse change that would reasonably be expected to have a Material Adverse Effect, which, in the Manager’s opinion, would materially and adversely affect the market for Units. 6.8 Since the date of the most recent financial statements included in the Prospectus, there shall not have been any decrease in the rating of any of the debt securities of the Partnership by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. 6.9 FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. 6.10 The Units shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager. 6.11 Prior to each Settlement Date and Time of Delivery, as applicable, the Partnership shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Partnership in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered to the office of ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Manager, at One Shell Plaza, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, or electronically to ▇▇▇▇▇ ▇▇▇▇▇ L.L.P. at an address provided by it to the Partnership or its counsel, on each such date as provided in this Agreement.

Appears in 1 contract

Sources: Equity Distribution Agreement (Teekay LNG Partners L.P.)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: ~~(a)~~ 6.1 The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission shall have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; any ~~other~~ material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or or, to the knowledge of the Company, threatened. ~~(i)~~ 6.2 The Company shall have ~~requested and~~ furnished or caused the Company Counsel to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be ~~so qualified~~ furnished the opinions and ~~in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company~~ letters from its counsel and ~~its Subsidiaries, taken~~ accountants as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. Section 4~~. The Registration Statement~~, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under dates as set forth in Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable4. ~~5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus~~6.3 The Manager shall have received from Cravath, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/Swaine & ▇▇▇▇~~▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof~~▇ LLP, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding counsel for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The Company shall have requested and caused Maryland Counsel to furnish to the Manager, on every date specified in Section 4(m) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in Section 4, on the ~~Disclosure Package~~ dates as set forth in Section 4, and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreement. (d) The Company shall have ~~requested~~ furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. 6.4 Each of the Manager and ~~caused Tax Counsel to furnish to~~ the ~~Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The~~ Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section ~~4(k)~~ 4.13 of this Agreement, a certificate ~~of the Company, signed~~ by ~~the Chief Executive Officer or the President~~ its principal executive officer and ~~the~~ principal financial ~~or accounting~~ officer ~~of the Company, on behalf of the Company,~~ dated as of such date, to the effect that the ~~signers~~ signer of such certificate ~~have~~ has carefully examined the ~~Registra~~Registration Statement and the Prospectus and any supplements or amendments thereto and this Agreement and that: (a) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; (b) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued by the Commission and no proceedings for that purpose have been instituted or, to such officer’s knowledge, threatened; (c) since the date of the most recent financial statements included in the Prospectus, there has been no material adverse effect on the general affairs, condition (financial or otherwise), results of operations, business, properties, assets or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto); and (d) on those Representation Dates when the opinions referred to in Sections 4.16, 4.18 and 4.19 are not provided, that, to such officer’s knowledge, there has not been any material change in the facts on which the opinions in Sections 4.16, 4.18 and 4.19 are based. 6.5 The Company shall have requested and caused KPMG LLP to have furnished to the Manager, on every date specified in Section 4.21 hereof and to the extent reasonably requested by the Manager in connection with any offering of the Shares, comfort letters, dated respectively as of such date, in form and substance reasonably satisfactory to the Manager. 6.6 Subsequent to the respective dates as of which information is disclosed in the Registration Statement and the Prospectus, except as otherwise stated therein, there shall not have been (i) any adverse change or decrease specified in the letter or letter referred to in Sections 6.5 or (ii) any adverse change, or any development involving a prospective adverse change that would reasonably be expected to have a Material Adverse Effect, which, in the Manager’s opinion, would materially and adversely affect the market for Shares. 6.7 Since the date of the most recent financial statements included in the Prospectus, there shall not have been any decrease in the rating of any of the debt securities of the Company by any “nationally recognized statistical rating organization” (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. 6.8 FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. 6.9 The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager. 6.10 Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered to the office of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, counsel for the Manager, at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, or electronically to Cravath, Swaine & ▇▇▇▇▇ at an address provided by it to the Company or its counsel, on each such date as provided in this Agreement.

Appears in 1 contract

Sources: Equity Distribution Agreement (Teekay Tankers Ltd.)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the ~~Company~~ Partnership contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the ~~Company~~ Partnership of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Units; any ~~other~~ material required to be filed by the ~~Company~~ Partnership pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (b) The Partnership shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(l) hereof, a certificate of the Partnership, signed on behalf of the Partnership by any two of the Chief Executive Officer, any President, any Executive Vice President, any Senior Vice President or any Vice President of GP LLC, dated as of such date, to the effect that the signers of such certificate have carefully examined the Registration Statement and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) subject to modification to incorporate the disclosures contained in the Registration Statement and the Prospectus, in each case as amended or supplemented as of such date, the representations and warranties of the Partnership in this Agreement are true and correct on and as of such date with the same effect as if made on such date; and the Partnership has complied in all material respects (except with respect to agreements and conditions that are qualified by materiality, which shall be true and correct in all respects) with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Partnership’s knowledge, threatened; and (iii) since the date of the most recent financial statements included in the Prospectus, there has not been any change, or any development involving a prospective change, in the partnership interests, capital stock, or long-term debt of the Partnership or any of its subsidiaries that would reasonably be expected to cause a Material Adverse Effect, or any change in the general affairs, management, financial position, results of operations, cash flows or working capital of the Partnership and its subsidiaries, whether or not arising from transactions in the ordinary course of business, that would reasonably be expected to cause a Material Adverse Effect, other than as set forth in or contemplated by the Prospectus. (c) The ~~Company~~ Partnership shall have requested and caused the ~~Company~~ Partnership Counsel to furnish to the Manager, on every date specified in Section ~~4(l~~4(m) ~~of this Agreement~~hereof, its opinion, dated as of such date and addressed to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise form set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuanceAnnex II hereto. (iid) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel The Partnership shall ~~also~~ have furnished to the Manager, on every date specified in Section ~~4(l~~4(n) hereof, an opinion of ~~this Agreement, a written statement~~the General Counsel, addressed to the Manager, and dated as of such date, and in form satisfactory to the Manager, in the form set forth in Annex III hereto. (e) The Partnership shall have furnished, or shall have requested and caused the Outside Canadian Counsel to furnish, to the Manager, on every date specified in Section 4(o) hereof, an opinion of such applicable Canadian Counsel, dated as of such date and addressed to the Manager, in the form set forth in Annex IV hereto. (f) The Manager shall have received from Manager’s Counsel on every date specified in Section 4(p) hereof, such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and sale of the Units, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Partnership shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (g) The Partnership shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(q) hereof and to the extent reasonably requested by the Manager with advance notice to the Partnership in connection with any offering of the Units, letters (which may refer to letters previously delivered to the Manager) containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information contained in the Registration Statement and the Prospectus, dated as of such date, in form and substance satisfactory to the Manager, ; provided that the cut-off date for the procedures performed by such accountants and described in such letters shall be a date not more than five days prior to the ~~effect that~~ date of such letter. (xh) ~~such counsel has acted as counsel~~ Subsequent to the ~~Company~~ respective dates as of which information is given in ~~connection with the preparation of~~ the Registration ~~Statement, the Disclosure Package~~ Statement and the ~~Prospectus and has reviewed the Registration Statement~~Prospectus, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that there shall not have occurred (i) any change, or any development involving a prospective change that would reasonably be expected to have a Material Adverse Effect, not contemplated by the ~~Registration Statement~~Prospectus, on which in the ~~effective date~~Manager’s opinion, ~~pursuant~~ would materially adversely affect the market for the Units, or (ii) any event or development relating to ~~Rule 430B(f)(2) under the Act,~~ or involving any of the ~~part~~ Plains Entities or any executive officer or director of any of such entities that makes any statement made in the Prospectus untrue or which, in the opinion of the ~~Registration Statement relating to the Shares for purposes of the liability of~~ Partnership and its counsel or the Manager ~~under Section 11~~ and its counsel, requires the making of any addition to or change in the ~~Act~~ Prospectus in ~~connection with the sale of the Shares, contained an untrue statement of a material fact or omitted~~ order to state a material fact required by the Act or any other law to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; , if amending or ~~(iii)~~ supplementing the ~~Disclosure Package~~Prospectus to reflect such event or development would, ~~as amended or supplemented at~~ in the ~~Execution Time or at any applicable date related to the delivery of such~~ Manager’s opinion, ~~contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make~~ materially adversely affect the ~~statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility~~ market for the ~~accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus~~ Units. (~~except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d~~i) ~~with respect to certain tax matters) and (b) express~~ FINRA shall not have raised any ~~belief~~ objection with respect to the ~~financial statements~~ fairness and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The Company shall have requested and caused Maryland Counsel to furnish to the Manager, on every date specified in Section 4(m) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws reasonableness of the ~~State of Maryland. (ii) The Company has the corporate power~~ terms and ~~authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations~~ arrangements under this Agreement. (~~iii~~j) The Units shall have been listed and admitted and authorized ~~capital stock~~ for trading on the NYSE, and satisfactory evidence of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects such actions shall have been provided to the ~~description thereof contained in the Disclosure Package~~ Manager. (k) Prior to each Settlement Date and ~~the Prospectus under the captions “General Description~~ Time of ~~the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K~~Delivery, as applicable~~. (iv) The sale~~ , the Partnership shall have furnished to the Manager such further information, certificates and ~~issuance~~ documents as the Manager may reasonably request. If any of the ~~Shares~~ conditions specified in this Section 6 shall not have been ~~duly authorized by all necessary corporate action on the part of the Company under its charter~~ fulfilled when and ~~bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for~~ as ~~contemplated by the Directors’ Resolutions and~~ provided in this Agreement, ~~such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock~~ or if any of the ~~Company are not entitled to preemptive~~ opinions and certificates mentioned in this Section 6 or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of elsewhere in this Agreement ~~have been duly authorized by all necessary corporate action on the part of the Company under its charter~~ shall not be reasonably satisfactory in form and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreement. (d) The Company shall have requested and caused Tax Counsel to furnish substance to the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Partnership in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered to the Manager by this Section 6 shall be delivered at the office of Manager’s Counsel, at ▇▇▇▇▇ ▇▇▇▇▇ LLP, One Shell Plaza, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, on ~~every~~ each such date ~~specified~~ as provided in ~~Section 4(n) of~~ this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chief Executive Officer or the President and the principal financial or accounting officer of the Company, on behalf of the Company, dated as of such date, to the effect that the signers of such certificate have examined the Registra.

Appears in 1 contract

Sources: Equity Distribution Agreement (Plains All American Pipeline Lp)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the ~~Company~~ Partnership contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the ~~Company~~ Partnership of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Units; any ~~other~~ material required to be filed by the ~~Company~~ Partnership pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The ~~Company~~ Partnership shall have requested and caused the ~~Company Counsel to furnish to the Manager~~Partnership Counsel, on every date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The Company shall have requested and caused Maryland Counsel to furnish to the Manager, on every date specified in Section 4(m) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: (i) ~~The Company~~ the Registration Statement has become effective under the Act; any required filing of the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to the knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued, no proceedings for that purpose have been instituted or threatened, and the Registration Statement and the Prospectus (other than the financial statements and other financial and statistical information contained therein, as to which such counsel need express no opinion) comply as to form in all material respects with the applicable requirements of the Act and the Exchange Act and the respective rules thereunder; (ii) each of the Partnership and the Operating Partnership has been duly ~~incorporated~~ formed and is validly existing in good standing as a ~~corporation~~ limited partnership under the Delaware LP Act, with full partnership power and authority to own or lease, as the case may be, and to operate its properties and to conduct its business, in each case in all material respects as described in the Registration Statement and the Prospectus, and is duly registered or qualified to do business as a foreign limited partnership and is in good standing under the laws of each jurisdiction which requires such qualification, except where the ~~State of Maryland.~~failure to so register or qualify would not have a Material Adverse Effect; (iiiii) ~~The Company~~ the General Partner has been duly formed and is validly existing in good standing as a limited liability company under the ~~corporate~~ Delaware LLC Act, with full limited liability company power and authority to own or ~~lease~~ lease, as the case may be, and to operate its ~~properties,~~ properties and to conduct its business and to act as ~~described~~ general partner of the Partnership and the Operating Partnership, and is duly registered or qualified to do business as a foreign limited liability company and is in good standing under the laws of each jurisdiction which requires such qualification, except where the failure to so register or qualify would not have a Material Adverse Effect; (iv) the General Partner is the sole general partner of the Partnership with a 1.0101% general partner interest in the ~~Disclosure Package~~ Partnership; such general partner interest has been duly and validly authorized and issued in accordance with the Partnership Agreement; and the ~~Prospectus~~ General Partner owns such general partner interest free and clear of all Liens (A) in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming the General Partner as debtor is on file in the office of the Secretary of State of the State of Delaware or (B) otherwise known to such counsel, other than those created by or arising under the Delaware LP Act or the Partnership Agreement; (v) each of the Subsidiaries has been duly organized and is validly existing and in good standing as a corporation or limited liability company under the laws of the jurisdiction of its organization, with full power and authority to own or lease, as the case may be, and to ~~enter into~~ operate its respective properties and ~~perform~~ to conduct its ~~obligations~~ business, and is duly registered or qualified to do business as a foreign corporation or limited liability company and is in good standing under ~~this Agreement.~~the laws of each jurisdiction which requires such qualification, except where the failure to so register or qualify would not have a Material Adverse Effect; (~~iii~~vi) ~~The authorized capital stock~~ the General Partner is the sole general partner of the ~~Company~~ Operating Partnership, and has a 1.0101% partnership interest in the Operating Partnership; such interest has been duly authorized and validly issued in accordance with the Operating Partnership Agreement; and the General Partner owns such general partner interest free and clear of all Liens (A) in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming the General Partner as debtor is on file in the office of the Secretary of State of the State of Delaware or (B) otherwise known to such counsel, other than those created by or arising under the Delaware LP Act or the Operating Partnership Agreement; (vii) the Partnership is the sole limited partner of the Operating Partnership with a 98.9899% partnership interest in the Operating Partnership; such interest has been duly authorized and validly issued in accordance with the Operating Partnership Agreement and is fully paid (to the extent required under the Operating Partnership Agreement) and nonassessable (except as such nonassessability may be affected by Section 17-607 of the Delaware LP Act); and the Partnership owns such limited partner interest free and clear of all Liens (A) in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming the Partnership as debtor is on file in the office of the Secretary of State of the State of Delaware or (B) otherwise known to such counsel, other than those created by or arising under the Delaware LP Act, the Operating Partnership Agreement or the Credit Facility; (viii) the Partnership owns, directly or indirectly, the equity interests of the Subsidiaries as set forth in Section 2 hereof free and clear of all Liens (A) in respect of which a financing statement under the ~~Disclosure Package and~~ Uniform Commercial Code of the ~~Prospectus~~ State of Delaware, Oklahoma or Pennsylvania, naming the applicable owner of such Subsidiary as debtor is on file in the ~~third paragraph~~ office of the Secretary of State of Delaware, Oklahoma or Pennsylvania, or (B) otherwise known to such counsel, without independent investigation, other than those created by or arising under the ~~caption “General Description~~ Credit Facility, the Delaware LLC Act, the DGCL, the Oklahoma Limited Liability Company Act or the Pennsylvania Limited Liability Company Act. Such equity interests were duly authorized and validly issued in accordance with the Subsidiary Organizational Documents, and all such equity interests (other than general partner interests) are fully paid (to the extent required under the Subsidiary Organizational Documents) and nonassessable (except as such nonassessability may be affected by the Delaware LLC Act, the DGCL, the Oklahoma Limited Liability Company Act or the Pennsylvania Limited Liability Company Act, as applicable); (ix) the Partnership Agreement has been duly authorized, executed and delivered and is a valid and legally binding agreement of the ~~Offered Securities”~~ General Partner, enforceable against the General Partner in accordance with its terms, except as ~~supplemented~~ such enforceability may be limited by the ~~information in Item 5.03~~ Enforceability Exceptions; (x) the equity interests of the ~~Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects~~ Partnership conform to the description thereof contained in the ~~Disclosure Package and~~ Prospectus; the ~~Prospectus under the captions “General Description of the Offered Securities” and “Description of Our~~ outstanding Common ~~Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares~~ Units have been duly and validly authorized ~~by all necessary corporate action on~~ and issued and are fully paid and nonassessable; the ~~part of the Company under its charter~~ Units have been duly and ~~bylaws~~ validly authorized, and, when issued and ~~the Maryland General Corporation Law, and when Shares are issued,~~ delivered to and paid for ~~as contemplated~~ by the ~~Directors’ Resolutions~~ Manager pursuant to this Agreement and ~~this~~ any Terms Agreement, ~~such Shares~~ will be validly issued, fully paid (to the extent required under the Partnership Agreement) and ~~non~~nonassessable (except as such nonassessability may be affected by Sections 17-~~assessable. The~~ 607 and 17-804 of the Delaware LP Act); the Units are duly listed, and admitted and authorized for trading, subject to official notice of issuance, on the NYSE; the holders of outstanding ~~shares of capital stock of the Company~~ Common Units are not entitled to preemptive or other rights to subscribe for the ~~Shares arising under~~ Units; and, to the ~~Maryland General Corporation Law~~ knowledge of such counsel, except as set forth in the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, ownership interests in the ~~charter or bylaws of the Company.~~Partnership are outstanding; (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iiixi) to the knowledge of such counsel, there is no pending or threatened action, suit or proceeding by or before any ~~decree~~court or governmental agency, ~~judgment~~ authority or body or any arbitrator involving the Partnership or the Subsidiaries or its or their property, of a character required to be disclosed in the Registration Statement which is not adequately disclosed in the Prospectus, and there is no franchise, contract or other document of a character required to be described in the Registration Statement or the Prospectus, or to be filed as an exhibit thereto, which is not described or filed as required; and the statements included or incorporated by reference in the Prospectus under the headings “Material U.S. Federal Income Tax Considerations,” “Management’s Discussion and Analysis of Financial Condition and Results of Operations,” “Business,” “Directors, Executive Officers and Corporate Governance,” “Executive Compensation” and “Certain Relationships and Related Transactions, and Director Independence,” insofar as they constitute descriptions of contracts or legal proceedings or refer to statements of law or legal conclusions, fairly summarize the matters therein described in all material respects; (xii) this Agreement and any applicable Terms Agreement have been duly authorized, executed and delivered by the Partnership; (xiii) the Partnership is not and, after giving effect to the offering and sale of the Units and the application of the proceeds thereof as described in the Prospectus, will not be an “investment company” as defined in the Investment Company Act of 1940, as amended; (xiv) no consent, approval, authorization, filing with or order of any court or governmental ~~authority~~ agency or body is required in connection with the transactions contemplated herein, except such as have been obtained under the Act and such as may be required under the blue sky laws of any jurisdiction in connection with the purchase and distribution of the ~~State~~ Units by the Manager in the manner contemplated in this Agreement and any Terms Agreement, the Prospectus (as to which such counsel need not express an opinion) and such other approvals (specified in such opinion) as have been obtained; (xv) neither the issue and sale of ~~Maryland applicable by name~~ the Units, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will conflict with, result in a breach or violation of, or imposition of any Lien upon any property or assets of the Partnership or the Subsidiaries pursuant to, (i) the Organizational Documents of the Atlas Parties, (ii) the terms of any indenture, contract, lease, mortgage, deed of trust, note agreement, loan agreement or other agreement, obligation, condition, covenant or instrument listed as an exhibit to the ~~Company~~Registration Statement or the documents incorporated by reference in the Registration Statement or the Prospectus under the Exchange Act, or (iii) any statute, law, rule, regulation, or, to the knowledge of such counsel, any judgment, order or decree applicable to any Atlas Party of any court, regulatory body, administrative agency, governmental body, arbitrator or other authority having jurisdiction over any Atlas Party or any of its properties, except, in the case of clauses (ii) and (iii) above, for any such conflict, breach, violation, default or Lien that would not, individually or in the aggregate, have a Material Adverse Effect; (xvi) the statements in the Registration Statement and the Prospectus under the captions “Description of Common Units” and “Our Partnership Agreement” insofar as they constitute descriptions of agreements or refer to statements of law or legal conclusions, are accurate in all material respects, and the Units, the Common Units and the Incentive Distribution Rights conform in all material respects to the descriptions thereof contained in the Registration Statement and the Prospectus; (xvii) the opinion of Ledgewood, P.C. that is filed as Exhibit 8.1 to the Registration Statement is confirmed, and the Manager may rely upon such opinion as if it were addressed to the Manager; and (xviii) no holders of securities of the Partnership have rights to the registration of such securities under the Registration Statement. In rendering such opinion, such counsel may rely (A) as to matters involving the application of laws of any jurisdiction other than the Commonwealth of Pennsylvania, the Delaware LLC Act, the Delaware LP Act, the DGCL or the Federal laws of the United States, to the extent they deem proper and specified in such opinion, upon the opinion of other counsel of good standing whom they believe to be reliable and who are satisfactory to counsel for the Manager and (B) as to matters of fact, to the extent they deem proper, on certificates of responsible officers of the General Partner on behalf of the Partnership and public officials. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. In addition, such counsel shall state that it has participated in conferences with officers and other representatives of the General Partner and the Partnership, representatives of the independent public accountants of the General Partner and the Partnership and the Manager’s representatives and counsel, at which the contents of the Registration Statement and the Prospectus and related matters were discussed, and although such counsel has not independently verified, is not passing on, and is not assuming any responsibility for the accuracy, completeness or fairness of the statements contained in, the Registration Statement and the Prospectus, on the basis of the foregoing, no facts have come to the attention of such counsel that lead it to believe that: (A) the Registration Statement, as of the most recent Effective Date, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; or (B) the Prospectus, as of its date and as of the date of the opinion, included or includes an untrue statement of a material fact or omitted or omits to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, it being understood that such counsel need not express any statement or belief with respect to (i) the financial statements and related schedules, including the notes and schedules thereto and the auditor’s report thereon, included or incorporated by reference in the Registration Statement and the Prospectus or (ii) any other financial or statistical information included or incorporated by reference in the Registration Statement and the Prospectus. (xc) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreement. (d) The Company Manager shall have ~~requested and caused Tax Counsel to furnish to~~ received from ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., counsel for the Manager, on every date specified in Section 4(n) of this Agreement, ~~its opinion~~such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and ~~in form~~ sale of the Units, the Registration Statement, the Prospectus (together with any supplement thereto) and other related matters as ~~set forth on Exhibit A. (e) The Company~~ the Manager may reasonably require, and the Partnership shall have furnished ~~or caused~~ to ~~be furnished~~ such counsel such documents as they request for the purpose of enabling them to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chief Executive Officer or the President and the principal financial or accounting officer of the Company, on behalf of the Company, dated as of such date, to the effect that the signers of such certificate have examined the Registrapass u

Appears in 1 contract

Sources: Equity Distribution Agreement (Atlas Pipeline Partners Lp)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the ~~Company~~ MarkWest Parties contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the ~~Company~~ MarkWest Parties of ~~its~~ their obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Units; any ~~other~~ material required to be filed by the ~~Company~~ Partnership pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The ~~Company~~ Partnership shall have requested and caused ~~the Company Counsel~~ Partnership Counsel, to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: ~~1. Based solely on certificates of public officials,~~ (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became has become effective under the Act; any required filing of the Base Prospectus and the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); ~~and, based solely on a review~~ to the knowledge of ~~the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof~~such counsel, no stop order suspending the effectiveness of the Registration Statement ~~and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus~~ or any ~~amendment or supplement thereto,~~ notice objecting to its use has been issued, ~~nor has any proceeding~~ no proceedings for ~~the~~ that purpose have been instituted or ~~threatened by~~ threatened, and the ~~Commission. 11. The Shares have been approved for listing by~~ Registration Statement and the ~~NYSE subject~~ Prospectus (other than the financial statements and other financial and statistical information contained therein, as to ~~official notice of issuance. (ii) In rendering such opinion,~~ which such counsel ~~may state that its opinion is limited~~ need express no opinion) comply as to ~~matters governed by~~ form in all material respects with the ~~federal laws~~ applicable requirements of the ~~United States of America, the internal laws of the State of New York, the internal laws of the State of California~~ Act and the ~~Delaware General Corporation Law. Such counsel shall also have furnished to~~ Exchange Act and the ~~Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager~~ respective rules thereunder; and ~~dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x)~~ such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel no reason to believe that ~~(i) the Registration Statement,~~ on the ~~effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of~~ Effective Date the Registration Statement ~~relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares,~~ contained an any untrue statement of a material fact or omitted to state a any material fact required to be stated therein or necessary to make the statements therein not ~~misleading; (ii)~~ misleading or that the ~~Prospectus,~~ Prospectus as of its ~~date,~~ date and ~~as of~~ on the ~~date of such opinion, contained~~ Closing Date included or ~~contains~~ includes any untrue statement of a material fact or omitted or omits to state ~~any~~ a material fact necessary ~~in order~~ to make the statements therein, in the light of the circumstances under which they were made, not ~~misleading; or~~ misleading (~~iii~~in each case, other than the financial statements and other financial information contained therein, as to which such counsel need express no opinion); (ii) such counsel has no reason to believe that the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not ~~misleading; provided~~misleading (other than the financial statements and other financial information contained therein, ~~however,~~ as to which such counsel need express no opinion); (iii) the Partnership has been duly formed and is ~~not passing upon~~ validly existing in good standing as a limited partnership under the Delaware LP Act with all necessary partnership power and ~~does not (a) assume any responsibility for the accuracy, completeness~~ authority to own or ~~fairness of the statements contained~~ lease its properties and to conduct its business in all material respects as described in the Registration Statement, the Disclosure Package and the ~~Prospectus~~ Prospectus. The Partnership is duly registered or qualified as a foreign limited partnership for the transaction of business under the laws of all applicable jurisdictions; (~~except~~ iv) each of MarkWest Hydrocarbon, MarkWest Energy GP, the Operating Company, the Subsidiaries of the Partnership organized in Texas and the Subsidiaries of the Partnership organized in Delaware has been duly formed and is validly existing in good standing as a corporation or limited liability company under the DGCL, the Delaware LLC Act, and the TBOC, as applicable, with all necessary corporate or limited liability company power, as applicable, and authority to own or lease its properties and to ~~the extent set forth~~ conduct its business in ~~such opinion and~~ all material respects as described in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or and the Prospectus. ~~References to~~ Each such entity is duly registered or qualified as a foreign corporation or limited liability company, as applicable, for the ~~Prospectus in this paragraph (b) shall also include any supplements thereto at~~ transaction of business under the ~~Settlement Date.~~laws of all applicable jurisdictions; (cv) ~~The Company shall have requested~~ MarkWest Energy GP is the sole general partner of the Partnership with all necessary limited liability company power and ~~caused Maryland Counsel~~ authority to ~~furnish to~~ act as the ~~Manager, on every date specified in Section 4(m)~~ general partner of ~~this Agreement, its opinion, dated as of such date and addressed to~~ the ~~Manager, to the effect that:~~Partnership; (ivi) ~~The Company~~ Bright Star has been duly ~~incorporated~~ formed and is validly existing as a ~~corporation in good standing~~ general partnership under the laws of the State of ~~Maryland. (ii) The Company has the corporate~~ Texas with all necessary partnership power and authority to own or lease its ~~properties,~~ properties and to conduct its business in all material respects as described in the Registration Statement, the Disclosure Package and the ~~Prospectus and to enter into and perform its obligations under this Agreement.~~Prospectus; (~~iii~~vii) ~~The~~ all outstanding Common Units and Class A Units and the limited partner interests represented thereby have been duly authorized ~~capital stock~~ and validly issued in accordance with the Partnership Agreement, and are fully paid (to the extent required under the Partnership Agreement) and nonassessable (except as such nonassessability may be affected by Sections 17-607 and 17-804 of the ~~Company~~ Delaware LP Act); (viii) the Partnership's authorized equity capitalization is as set forth in the Disclosure Package and the ~~Prospectus in~~ Prospectus; the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the ~~Company~~ Partnership conforms ~~as to legal matters in all material respects~~ to the description thereof contained in the Disclosure Package and the ~~Prospectus under~~ Prospectus; the ~~captions “General Description of the Offered Securities” and “Description of Our~~ outstanding Common ~~Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares~~ Units have been duly and validly authorized ~~by all necessary corporate action on~~ and issued and are fully paid and nonassessable; the ~~part of the Company under its charter~~ Units have been duly and ~~bylaws~~ validly authorized, and, when issued and ~~the Maryland General Corporation Law, and when Shares are issued,~~ delivered to and paid for ~~as contemplated~~ by the ~~Directors’ Resolutions~~ Manager pursuant to this Agreement and ~~this~~ any Terms Agreement, ~~such Shares~~ will be ~~validly issued,~~ fully paid and ~~non-assessable. The~~ nonassessable; the Units are duly listed, and admitted and authorized for trading, subject to official notice of issuance, on the NYSE; the certificates for the Units are in valid and sufficient form; the holders of outstanding ~~shares of capital stock~~ Common Units of the ~~Company~~ Partnership are not entitled to preemptive or other rights to subscribe for the ~~Shares arising under~~ Common Units; and, except as set forth in the ~~Maryland General Corporation Law~~ Disclosure Package and the Prospectus, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, Common Units or ownership interests in the ~~charter or bylaws~~ Partnership are outstanding; (ix) the issued and outstanding membership interests, general partner interests and capital stock, as applicable, of each of MarkWest Energy GP, the Operating Company, the Subsidiaries of the ~~Company. (v) The specimen stock certificate used to evidence~~ Partnership organized in Texas, the ~~Shares complies with the applicable requirements~~ Subsidiaries of the ~~Maryland General Corporation Law~~ Partnership organized in Delaware, MarkWest Hydrocarbon and ~~with any applicable requirements of the charter or bylaws of the Company.~~ Bright Star (vii) ~~The execution and delivery of this Agreement~~ have been duly authorized and validly issued in accordance with its Constituent Documents, (ii) are fully paid (to the extent required under the Constituent Agreements) and (iii) are non-assessable (except as such nonassessability may be affected by ~~all necessary corporate action on the part~~ Sections 17-607 and 17-804 of the ~~Company~~ Delaware LP Act, Sections 18-607 and 18-804 of the Delaware LLC Act or Section 101.206 of the TBOC); (x) the Partnership directly or indirectly owns the general partner interests, membership interests and capital stock, as applicable, in the Subsidiaries in all material respects as described in the Disclosure Package and in the Prospectus, free and clear of all Liens (except Liens created by or arising under ~~its charter~~ the Credit Agreement, the DGCL or the Delaware LLC Act) (A) in respect of which a financing statement under the Uniform Commercial Code of the State of Delaware naming the Partnership, MarkWest Hydrocarbon, the Operating Company, Liberty LLC, MarkWest Energy GP, MarkWest Energy Appalachia, L.L.C., a Delaware limited liability company, or MarkWest Utica Operating Company, L.L.C., a Delaware limited liability company, as debtor is on file in the office of the Secretary of State of the State of Delaware, (B) in respect of which a financing statement under the Uniform Commercial Code of the State of Texas naming MarkWest Pinnacle, L.L.C. as debtor is on file in the office of the Secretary of State of the State of Texas or (C) otherwise known to such counsel, without independent investigation; (xi) each of the Constituent Documents, as applicable, to which any of the MarkWest Entities (other than Bright Star, Centrahoma Processing LLC, a Delaware limited liability company, MarkWest Liberty Midstream & Resources, L.L.C., a Delaware limited liability company, MarkWest Pioneer, L.L.C., a Delaware limited liability company, and ~~bylaws and the Maryland General Corporation Law. This Agreement~~ ▇▇▇▇▇ Gathering) is a party has been duly authorized and validly executed and delivered by such entity that is a party thereto and, assuming due authorization, execution and delivery by each entity to such agreement other than such parties, each of the ~~Company.~~Constituent Documents (other than any Constituent Document governed by law other than Texas or Delaware law), as applicable, constitutes a valid and legally binding agreement of the MarkWest Entities that are parties thereto, enforceable against such entity in accordance with its respective terms, subject to (A) applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws relating to or affecting creditors' rights generally and by general principles of equity (regardless of whether such enforceability is considered in a proceeding in equity or at law) and (B) public policy, applicable law relating to the fiduciary duties and indemnification and contribution and an implied covenant of good faith and fair dealing; (~~vii~~xii) ~~The~~ the Partnership has all requisite power and authority to issue, sell and deliver the Units to be sold by it pursuant to this Agreement, in accordance with and upon the terms and conditions set forth in this Agreement, the Partnership Agreement, the Registration Statement, the Disclosure Package and the Prospectus; (xiii) To such counsel's knowledge, (A) there are no legal, governmental or regulatory investigations, actions, suits or proceedings pending, threatened or contemplated to which any of the MarkWest Entities is or may be a party or to which any property of any of the MarkWest Entities is or may be subject that are required to be described in the Registration Statement, the Disclosure Package or the Prospectus that are not described as required by the Act and (B) there are no agreements, contracts, indentures, leases or other instruments that are required to be described in the Registration Statement, the Disclosure Package or the Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed as required by the Act; and the statements included in ~~(a)~~ the Registration Statement, the Disclosure Package and the Prospectus under the captions ~~“General~~ "Summary—The Offering," "Description of ~~the Offered Securities~~Common Units,~~” “Description of Our Common Stock”~~ " "Cash Distribution Policy," and ~~“Certain Provisions of Maryland Law and of Our Charter and Bylaws”~~ "Partnership Agreement" insofar as ~~supplemented by the information in Item 5.03~~ they purport to constitute summaries of the ~~Form 8-K, and~~ terms of the Common Units (bincluding the Units) ~~Item 15 “Indemnification~~ are accurate summaries of ~~Officers and Directors”~~ the terms thereof in ~~Part II of~~ all material respects; (xiv) the statements included in the Registration Statement, the Disclosure Package and the Prospectus under the captions "Cash Distribution Policy," "Partnership Agreement," and "Investment in MarkWest Energy Partners by Employee Benefit Plans" insofar as ~~such statements summarize matters~~ they purport to constitute summaries of ~~Maryland law~~ the terms of federal or Texas statutes, rules or regulations or the ~~charter~~ Delaware LP Act or ~~bylaws~~ the Delaware LLC Act, any legal and governmental proceedings or any contracts and other documents, constitute accurate summaries of the ~~Company~~terms of such statutes, ~~are true~~ rules and ~~correct~~ regulations, legal and governmental proceedings and contracts and other documents in all material respects.. The description of the federal statutes, rules and regulations set forth in the Partnership's annual report on Form 10-K for the year ended December 31, 2011 under "Business—Regulatory Matters" and "Business—Environmental Matters" constitute accurate summaries of the terms of such statutes, rules and regulations in all material respects; (~~viii~~xv) No this Agreement and any applicable Terms Agreement have been duly authorized, validly executed and delivered by the MarkWest Parties; (xvi) none of the MarkWest Entities organized in Delaware or Texas is, nor after giving effect to the offering and sale of the Units and the application of the proceeds thereof as described in the Disclosure Package will any of such entities be, an "investment company" as such term is defined in the Investment Company Act of 1940, as amended; (xvii) no permit, consent, approval, authorization, ~~consent~~ order, registration, filing or ~~order of~~ qualification ("consent") under the DGCL, Delaware LP Act, the Delaware LLC Act, the TBOC or ~~filing with any governmental authority of the State of Maryland pursuant to any~~ other Texas law ~~of the State of Maryland~~ or federal law is required ~~in connection with~~ for the offering, issuance and sale by the Partnership of the ~~Shares~~ Units to be sold by ~~the Company and consummation of the transactions contemplated by~~ it pursuant to this Agreement, ~~other than such as have been obtained or made, as~~ the ~~case may be. (ix) The~~ execution, delivery and performance of this Agreement by the ~~Company and~~ Partnership or the ~~issuance, sale and delivery~~ consummation by the Partnership of the ~~Shares does not~~ transactions contemplated by this Agreement, except for such consents required under the Act, the Exchange Act or under state securities or "Blue Sky" laws, as to which such counsel expresses no opinion; (xviii) neither the issue and sale of the Units, nor the consummation of any other of the transactions herein contemplated nor the fulfillment of the terms hereof will ~~not~~ (A) conflict with or result in a breach or violation of any ~~breach~~ of the terms or ~~constitute a default under (nor constitute any event which with notice~~provisions of, ~~lapse of time or both would result in any breach of~~ or constitute a default under): , or result in the creation or imposition of any lien, charge or encumbrance upon any of its property or assets pursuant to, any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument filed or incorporated by reference as an exhibit to the Partnership's annual report on Form 10-K for the year ended December 31, 2011, the Partnership's quarterly report on Form 10-Q for the period ended March 31, 2012, the Partnership's quarterly report on Form 10-Q for the period ended June 30, 2012, the Partnership's quarterly report on Form 10-Q for the period ended September 30, 2012, or any applicable current report on Form 8-K filed with the Commission after January 1, 2012, (iB) ~~the charter or bylaws~~ result in any violation of the ~~Company, (ii)~~ provisions of any ~~laws, rules or regulations~~ Constituent Documents of the ~~State of Maryland~~ MarkWest Entities, as applicable, or (~~iii~~C) to result in the ~~knowledge of such counsel, any decree, judgment or order of any court or governmental authority~~ violation of the ~~State of Maryland applicable by name to~~ DGCL, the ~~Company.~~ Delaware LP Act, the Delaware LLC Act, the TBOC, other Texas law or federal law (~~x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need~~ provided that we express no opinion with respect to compliance with any ~~federal or~~ state securities ~~laws~~ or federal or state ~~laws relating~~ antifraud law) or, to ~~fraudulent conveyances. (xi) The opinions~~ such counsel's knowledge, any judgment, order, rule or regulation of any court or arbitrator or governmental or regulatory authority known to us, except, in the case of clauses (~~vii), (viii~~A) and (ixC) ~~above~~ above, for any such conflict, breach or violation that would not, individually or in the aggregate, have a Material Adverse Effect; and (xix) except as described in the Disclosure Package and the Constituent Documents of the MarkWest Entities, as applicable, there are no preemptive rights or other rights to subscribe for or to purchase, nor any restrictions upon the voting or transfer of, any shares of capital stock of or partnership or membership interest in the Partnership, MarkWest Energy GP or any of the Significant Subsidiaries, in each case pursuant to the Constituent Documents, as applicable, or, to such counsel's knowledge, any other agreement or instrument listed as an exhibit to the Registration Statement to which such entities are a party or by which any of them may be ~~limited to Maryland Counsel’s consideration~~ bound. To such counsel's knowledge and except as described in the Partnership Agreement, neither the filing of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders Registration Statement nor the offering or ~~filings of or with any governmental authority~~ sale of the ~~State~~ Units as contemplated by this Agreement gives rise to any rights for or relating to the registration of ~~Maryland (~~any Units or other ~~than those required under~~ securities ~~laws and tax laws~~ of the ~~State of Maryland as to which Maryland Counsel need express no opinion)~~Partnership, if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreement. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chief Executive Officer or the President and the principal financial or accounting officer of the Company, on behalf of the Company, dated as of such date, to the effect that the signers of such certificate have examined the Registraot

Appears in 1 contract

Sources: Equity Distribution Agreement (Markwest Energy Partners L P)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the ~~Company~~ Partnership contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the ~~Company~~ Partnership of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Units; any ~~other~~ material required to be filed by the ~~Company~~ Partnership pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The ~~Company~~ Partnership shall have requested and caused the ~~Company Counsel~~ Partnership Counsel, to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its ~~opinion~~opinions, each dated as of such date and addressed to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described substantially in the ~~Disclosure Package~~ form attached hereto as Annex II-1, Annex II-2 and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement DateAnnex II-3. (c) The ~~Company~~ Manager shall have ~~requested and caused Maryland Counsel to furnish to~~ received from ▇▇▇▇▇ Lord LLP, counsel for the Manager, on every date specified in Section 4(m) of this Agreement, ~~its opinion~~such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the ~~Shares by~~ Units, the ~~Company~~ Registration Statement, the Disclosure Package (together with any supplement thereto) and ~~consummation of the transactions contemplated by this Agreement,~~ other ~~than such as have been obtained or made,~~ related matters as the ~~case~~ Manager may ~~be. (ix) The execution~~reasonably require, ~~delivery and performance of this Agreement by the Company~~ and the ~~issuance, sale and delivery~~ Partnership shall have furnished to such counsel such documents as they request for the purpose of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) enabling them to ~~the knowledge of~~ pass upon such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreementmatters. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The Company Partnership shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the ~~Company~~general partner of the Partnership, signed by the Chief Executive Officer ~~or the President~~ and the principal financial or accounting ~~officer of the Company, on behalf of the Company~~officer, dated as of such date, to the effect that the signers of such certificate have carefully examined the ~~Registra~~Registration Statement and the Disclosure Package and any supplements or amendments thereto and this Agreement and that: (i) the representations and warranties of the Partnership in this Agreement are true and correct on and as of such date with the same effect as if made on such date, and the Partnership has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Partnership’s knowledge, threatened; and (iii) since the date of the most recent financial statements included in the Registration Statement and the Disclosure Package, there has been no Material Adverse Effect, except as set forth in or contemplated in the Registration Statement and the Disclosure Package. (e) The Partnership shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(n) hereof and to the extent requested by the Manager in connection with any offering of the Units, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, as follows: (i) confirming that they are independent public accountants within the meaning of the Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S-X of the Commission; (ii) The financial statements included or incorporated by reference in the Registration Statement, the Base Prospectus and any Prospectus Supplement, together with the related notes and schedules, present fairly the consolidated financial positions of the entities purported to be shown thereby as of the dates indicated and the consolidated results of operations, cash flows and changes in partners’ equity of such entities for the periods specified and have been prepared in all material respects in compliance with the requirements of the Act and Exchange Act and in conformity with U.S. generally accepted accounting principles applied on a consistent basis during the periods involved, except to the extent disclosed therein; all pro forma financial statements or data included or incorporated by reference in the Registration Statement, the Base Prospectus and any Prospectus Supplement comply in all material respects with the requirements of the Act (including, without limitation, Regulation S-X under the Act) and the Exchange Act (including, without limitation, Regulation G under the Exchange Act), Item 10 under Regulation S-K and Financial Accounting Standards Board Interpretation No. 46, and the assumptions used in the preparation of such pro forma financial statements and data are, in the Partnership’s judgment, reasonable, the pro forma adjustments used therein are appropriate to give effect to the transactions or circumstances described therein and the pro forma adjustments have been properly applied to the historical amounts in the compilation of those statements and data; the other financial and statistical data contained or incorporated by reference in the Registration Statement, the Base Prospectus, the Prospectus Supplement and the Prospectus are accurately and fairly presented and prepared on a basis consistent with the financial statements and books and records of the Partnership Entities; there are no financial statements (historical or pro forma) that are required to be included or incorporated by reference in the Registration Statement, the Base Prospectus, the Prospectus Supplement or the Prospectus that are not included or incorporated by reference as required; and (iii) stating, as of the date hereof (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Prospectus Supplement, as of a date not more than three days prior to the date hereof), the conclusions and findings of such firm with respect to the financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings. (f) Between the Execution Time and the time of any sale of Units through this Manager, there shall not have occurred any development that in the judgment of the Manager could have a Material Adverse Effect, taken as a whole from that set forth in the Registration Statement and the Disclosure Package (in each case, exclusive of any amendment or supplement thereto) that makes it, in your judgment, impracticable or inadvisable to proceed with the offer, sale or delivery of the Units on the terms and in the manner contemplated in the Registration Statement or the Disclosure Package. (g) Between the Execution Time and the time of any sale of Units through the Manager, there shall not have been any decrease in the rating of any of the Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g)(2) under the Act as in effect on July 20, 2010) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. (h) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (i) The Units shall have been listed and admitted and authorized for trading on the NYSE, subject only to official notice of issuance, and satisfactory evidence of such actions shall have been provided to the Manager. (j) Prior to each Settlement Date and Time of Delivery, as applicable, the Partnership shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Partnership in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇ Lord LLP, counsel for the Manager, at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, Suite 2800, Houston, Texas 77002, or electronically if agreed to by the parties, on each such date as provided in this Agreement.

Appears in 1 contract

Sources: Equity Distribution Agreement (Regency Energy Partners LP)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: ~~(a)~~ 6.1 The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; any ~~other~~ material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or or, to the knowledge of the Company, threatened. ~~(i)~~ 6.2 The Company shall have ~~requested and~~ furnished or caused the Company Counsel to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be ~~so qualified~~ furnished the opinions and ~~in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company~~ letters from its counsel and ~~its Subsidiaries, taken~~ accountants as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. Section 4~~. The Registration Statement~~, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under dates as set forth in Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable4. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as 6.3 The Manager shall have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/received from ▇▇▇▇▇ ▇▇▇▇~~▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof~~▇ L.L.P., no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding counsel for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The Company shall have requested and caused Maryland Counsel to furnish to the Manager, on every date specified in Section 4(m) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in Section 4.19, on the ~~Disclosure Package~~ dates as set forth in Section 4, and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreement. (d) The Company shall have ~~requested and caused Tax Counsel~~ furnished to ~~furnish~~ such counsel such documents as they request for the purpose of enabling them to ~~the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of~~ pass upon such ~~date and addressed to the Manager, and in form as set forth on Exhibit A.~~matters. ~~(e)~~ 6.4 The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section ~~4(k)~~ 4.11 of this Agreement, a certificate ~~of the Company, signed~~ by ~~the Chief Executive Officer~~ its principal executive officer or ~~the President and the~~ principal financial ~~or accounting~~ officer ~~of the Company, on behalf of the Company,~~ dated as of such date, to the effect that the ~~signers~~ signer of such certificate ~~have~~ has carefully examined the ~~Registra~~Registration Statement and the Prospectus and any supplements or amendments thereto and this Agreement and that: a) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; b) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued by the Commission and no proceedings for that purpose have been instituted or, to such officer’s knowledge, threatened; c) since the date of the most recent financial statements included in the Prospectus, there has been no material adverse effect on the general affairs, condition (financial or otherwise), results of operations, business, properties, assets or prospects of the Teekay Entities, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus, as amended or supplemented; and d) on those Representation Dates when the opinions referred to in Section 4.14 through Section 4.18 are not provided, that, to such officer’s knowledge, there has not been any material change in the facts on which the opinions in Section 4.14 through Section 4.18 are based. 6.5 The Company shall have requested and caused KPMG LLP to have furnished to the Manager, on every date specified in Section 4.20 hereof and to the extent reasonably requested by the Manager in connection with any offering of the Shares a comfort letter, dated respectively as of such date, in form and substance reasonably satisfactory to the Manager. 6.6 Subsequent to the respective dates as of which information is disclosed in the Registration Statement and the Prospectus, except as otherwise stated therein, there shall not have been (i) any adverse change or decrease specified in the letter referred to in Section 6.5 or (ii) any adverse change, or any development involving a prospective adverse change that would reasonably be expected to have a Material Adverse Effect, which, in the Manager’s opinion, would materially and adversely affect the market for Shares. 6.7 Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the debt securities of the Company by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. 6.8 FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. 6.9 The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager. 6.10 Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered to the office of ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel for the Manager, at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇. ▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, or electronically to ▇▇▇▇▇ ▇▇▇▇▇ L.L.P. at an address provided by it to the Company or its counsel, on each such date as provided in this Agreement.

Appears in 1 contract

Sources: Equity Distribution Agreement (Teekay Corp)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement required to be filed shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(q) of this Agreement; any ~~other~~ material required to be filed by the Company pursuant to Rule 433(d) under the ~~Act,~~ Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose or pursuant to Section 8A of the Act shall have been instituted or threatened. (ib) The Company shall have requested and caused ~~the~~ Company Counsel to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, ~~its opinion, dated as of such date~~ opinions and addressed to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, disclosure letters in form and substance reasonably satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The ~~Company~~ Manager shall have ~~requested and caused Maryland Counsel to furnish to~~ received from Ropes & Gray LLP, counsel for the Manager, on every date specified in Section 4(m) of this Agreement, ~~its opinion~~such opinion or opinions and disclosure letter or letters, dated as of such date and addressed to the Manager, with respect to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the ~~Shares by~~ Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Manager may reasonably require, and the Company ~~and consummation~~ shall have furnished to such counsel such documents as they reasonably request for the purpose of ~~the transactions contemplated by this Agreement, other than~~ enabling them to pass upon such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreementmatters. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the ~~Chief Executive Officer~~ chief executive officer or the President ~~and the principal financial or accounting officer~~ of the Company, ~~on behalf~~ to the effect that the signer of such certificate has carefully examined the Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the Company has received no stop order suspending the effectiveness of the Registration Statement, and no proceedings for such purpose or pursuant to Section 8A of the Act have been instituted or, to the Company’s knowledge, threatened by the Commission; (ii) since the date of the most recent financial statements included in the Prospectus and the Disclosure Package, there has been no event or condition of a type described in Section 2(l) hereof (a “Material Adverse Change”), except as set forth in or contemplated in the Disclosure Package and the Prospectus; (iii) the representations, warranties and covenants set forth in Section 2 of this Agreement are true and correct with the same force and effect as though expressly made on and as of such date; and (iv) the Company and its subsidiaries have complied in all material respects with all the agreements hereunder and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such date. (e) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(n) hereof to the extent financial information audited or reviewed by such firm is included or incorporated by reference on the Registration Statement, the Disclosure Package and the Prospectus, as amended and supplemented to the date of such letter, and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance reasonably satisfactory to the ~~effect~~ Manager, which letters shall cover, without limitation, the various financial statements and disclosures contained in the Registration Statement, the Disclosure Package and the Prospectus and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Auditing Standards 6101, as published by the Public Company Accounting Oversight Board (“PCAOB”), as well as confirming that they have performed a review of any unaudited interim financial information of the ~~signers~~ Company included in the Registration Statement, the Disclosure Package and the Prospectus in accordance with Auditing Standards 4105, Reviews of Interim Financial Information, as published by the PCAOB. References to the Prospectus in this paragraph (e) include any supplement thereto at the date of the letter. (f) The Manager shall have received a certificate of the Chief Financial Officer, on every date specified in Section 4(o) hereof, in form and substance reasonably satisfactory to the Manager, with respect to certain financial information included or incorporated by reference on the Registration Statement, the Disclosure Package and the Prospectus, as amended and supplemented to the date of such ~~certificate~~ certificate. (g) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have ~~examined~~ been (i) any change or decrease specified in the ~~Registra~~letter or letters referred to in paragraph (e) of this Section 6 or (ii) Material Adverse Change, except as set forth in or contemplated in the Disclosure Package (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto). (h) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (i) The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager. (j) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager with respect to itself only. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered electronically to Ropes & Gray LLP, counsel for the Manager, on each such date as provided in this Agreement.

Appears in 1 contract

Sources: Equity Distribution Agreement (Biohaven Ltd.)

Conditions to the Obligations of the Manager. The obligations of the ~~Manager~~ Managers under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Offered Units; any ~~other~~ material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The Company shall have requested and caused the Company Counsel to furnish to the ~~Manager~~Managers, on every date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the ~~Manager~~Managers, to substantially in the ~~effect that:~~form attached hereto as Exhibit A. ~~1. Based solely on certificates of public officials,~~ (ic) ~~each~~ The Company shall have requested and caused the General Counsel or Senior Counsel of the Company ~~and each subsidiary listed~~ to furnish to the Managers, on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is every date specified in ~~good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s~~Section 4(m) of ~~Foreign Qualification” on~~ this Agreement, her opinion, dated as of such ~~Schedule A~~ date and ~~(ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under~~ addressed to the ~~laws of the State of Delaware is validly existing as a corporation~~Managers, ~~in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described~~ substantially in the ~~Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to~~ form attached hereto as Exhibit B. (d) The Managers shall have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (received from ▇▇▇.▇▇▇.▇ ▇▇▇/▇▇▇▇ & ▇▇▇▇▇▇▇~~▇▇▇/▇▇▇▇▇▇▇▇▇▇~~▇ LLP, counsel for the Managers, on every date specified in Section 4(n) of this Agreement, such opinion or opinions, dated as of such date and addressed to the Managers, with respect to the issuance and sale of the Offered Units, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Managers may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters.~~▇▇▇▇▇~~ (e) The Company shall have furnished or caused to be furnished to the Managers, on every date specified in Section 4(k) of this Agreement, a certificate of the ~~date hereof~~Company signed by its Chief Executive Officer and its Chief Financial Officer, dated as of such date, stating that each of them severally represents that: (i) the representations, warranties and agreements of the Company in Section 2 are true and correct on and as of such date, and the Company has complied with all its agreements contained herein in all material respects and satisfied all the conditions on its part to be performed or satisfied hereunder at or prior to such date; (ii) no stop order suspending the effectiveness of the Registration Statement has been issued; no proceedings or examination for that purpose have been instituted or, to the knowledge of such officers, threatened; and ~~no order directed at~~ the Commission has not notified the Company of any ~~document incorporated by reference in~~ objection to the use of the form of the Registration Statement or ~~the Prospectus or~~ any post-effective amendment ~~or supplement~~ thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance.; (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (xiii) such ~~counsel~~ officer has ~~acted as counsel to the Company in connection with the preparation of~~ carefully examined the Registration Statement, the ~~Disclosure Package~~ Prospectus and the ~~Prospectus and has reviewed the Registration Statement~~Disclosure Package, ~~and~~ and, in such officer’s opinion, (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (iA)(1) the Registration Statement, as of the most recent Effective Date, (2) the Prospectus, as of its date and on the ~~effective date~~applicable Settlement Date or Time of Delivery, ~~pursuant to Rule 430B(f)(2~~and (3) ~~under~~ the ~~Act~~Disclosure Package, as of the ~~part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares~~Applicable Time, ~~contained an~~ did not and do not contain any untrue statement of a material fact ~~or omitted~~ and did not and do not omit to state a material fact required to be stated therein or necessary to make the statements therein ~~not misleading;~~ (~~ii)~~ except in the ~~Prospectus, as of its date, and as~~ case of the ~~date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein~~Registration Statement, in the light of the circumstances under which they were made, ) not misleading, and (B) since the most recent Effective Date, no event has occurred that should have been set forth in a supplement or amendment to the Registration Statement, the Prospectus or any Issuer Free Writing Prospectus that has not been so set forth; and (iv) since the respective dates as of which information is given in the Disclosure Package and the Prospectus, there has not been any development that resulted in a Material Adverse Effect or any development that could reasonably be expected to result in a material adverse effect on the condition (~~iii~~financial or otherwise), results of operations, stockholders’ or members’ equity or business of the Company and its Subsidiaries taken as a whole, whether or not arising in the ordinary course of business. (f) The Company shall have requested and caused the Accountants to have furnished to the Managers, on every date specified in Section 4(o) hereof and to the extent requested by the Managers in connection with any offering of the Offered Units, letters (which may refer to letters previously delivered to the Managers), dated as of such date, in form and substance reasonably satisfactory to the Managers, (i) confirming that they are independent registered public accountants within the meaning of the Securities Act and are in compliance with the applicable requirements relating to the qualification of accountants under Rule 2-01 of Regulation S X of the Commission and (ii) stating, as of such date (or, with respect to matters involving changes or developments since the respective dates as of which specified financial information is given in the Disclosure Package, as ~~amended or supplemented at~~ of a date not more than three days prior to such date), the ~~Execution Time or at any applicable date related~~ conclusions and findings of such firm with respect to the ~~delivery~~ financial information and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings. (g) The Company shall have requested and caused the Reserve Engineer to have furnished to the Managers, on every date specified in Section 4(p) hereof and to the extent requested by the Managers in connection with any offering of the Offered Units, letters (which may refer to letters previously delivered to the Managers), dated as of such ~~opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein~~date, in ~~light~~ form and substance reasonably satisfactory to the Managers, covering certain matters relating to information about the reserves of the ~~circumstances under~~ Company presented in the Disclosure Package and the Prospectus. (h) Since the respective dates as of which ~~they were made, not misleading; provided, however, such counsel~~ information is ~~not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained~~ disclosed in the Registration Statement, the Disclosure Package and the ~~Prospectus (~~Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and to its Subsidiaries taken as a whole, whether or not arising from transactions in the ~~extent~~ ordinary course of business, except as set forth in ~~such opinion~~ or contemplated in the Disclosure Package (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Managers, so material and ~~in opinions delivered pursuant~~ adverse as to ~~Section 6(d)~~ make it impractical or inadvisable to proceed with ~~respect to certain tax matters) and (b) express any belief with respect to~~ the ~~financial statements and supporting schedules and other financial and statistical data included~~ offering or ~~incorporated~~ delivery of the Offered Units as contemplated by ~~reference in, or omitted from,~~ the Registration ~~Statement~~Statement (exclusive of any amendment thereof), the Disclosure Package ~~or the Prospectus. References to~~ and the Prospectus ~~in this paragraph~~ (~~b) shall also include~~ exclusive of any ~~supplements thereto at the Settlement Date~~amendment or supplement thereto). (c) The Company shall have requested and caused Maryland Counsel to furnish to the Manager, on every date specified in Section 4(m) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: (i) The Company ~~has been duly incorporated and is validly existing as a corporation in good standing under~~ shall have paid the ~~laws~~ required Commission filing fees relating to the Offered Units within the time period required by Rule 456(b)(1)(i) of the ~~State~~ Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of ~~Maryland~~the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b). (iij) ~~The Company has~~ FINRA shall not have raised any objection with respect to the ~~corporate power~~ fairness and ~~authority to own or lease its properties, to conduct its business as described in~~ reasonableness of the ~~Disclosure Package~~ terms and ~~the Prospectus and to enter into and perform its obligations~~ arrangements under this Agreement. (~~iii~~k) ~~The authorized capital stock~~ Between the Execution Time and the time of ~~the Company is as set forth~~ any sale of Offered Units through any Manager, there shall not have been any decrease in the ~~Disclosure Package and the Prospectus in the third paragraph under the caption “General Description~~ rating of ~~the Offered Securities” as supplemented by the information in Item 5.03~~ any of the Company’s ~~Current Report on Form 8-K filed with the Commission on June 6, 2016~~ debt securities by any “nationally recognized statistical rating organization” (~~the “Form 8-K”). The authorized capital stock~~ as such term is used in Section 15E of the ~~Company conforms as to legal matters~~ Exchange Act) or any notice given of any intended or potential decrease in ~~all material respects~~ any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. (l) The Offered Units shall have been listed and admitted and authorized for trading on the Nasdaq, and satisfactory evidence of such actions shall have been provided to the ~~description thereof contained in the Disclosure Package~~ Managers. (m) Prior to each Settlement Date and ~~the Prospectus under the captions “General Description~~ Time of ~~the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K~~Delivery, as applicable~~. (iv) The sale and issuance of~~ , the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreement. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The Company shall have furnished ~~or caused to be furnished~~ to the ~~Manager~~Managers such further information, ~~on every date~~ certificates and documents as the Managers may reasonably request. If any of the conditions specified in this Section ~~4(k) of~~ 6 shall not have been fulfilled when and as provided in this Agreement, ~~a certificate~~ or if any of the ~~Company~~opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Managers and counsel for the Managers, ~~signed~~ this Agreement and all obligations of the Managers hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the ~~Chief Executive Officer~~ Managers. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the ~~President and~~ office of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the ~~principal financial~~ Managers, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, or ~~accounting officer of~~ electronically if agreed to by the ~~Company~~parties, on ~~behalf of the Company, dated~~ each such date as ~~of such date, to the effect that the signers of such certificate have examined the Registra~~provided in this Agreement.

Appears in 1 contract

Sources: Equity Distribution Agreement (Linn Energy, LLC)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; any ~~other~~ material required to be filed by the Company pursuant to Rule 433(d) ~~under~~ of the ~~Act,~~ Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The Company shall have requested and caused the Company Counsel to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: ~~1. Based solely on certificates of public officials,~~ (i) ~~each of the~~ The Company has been duly organized and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a ~~corporation,~~ corporation in good standing under the laws of the State of ~~Delaware, with~~ Ohio. (ii) The Company has all requisite corporate power and authority to ~~own or lease~~own, ~~as the case may be,~~ lease and operate its properties and to conduct its business as described in the Disclosure Package and the ~~Prospectus,~~ Prospectus and to enter into and perform its obligations under this Agreement and any applicable Terms Agreement. (iii) The Company is duly qualified to transact business and is in good standing in each jurisdiction in which it owns real property except where the failure to qualify and be ~~so qualified and~~ in good standing would not ~~reasonably be expected to~~ have a material adverse effect on the ~~business~~condition, financial ~~condition~~or otherwise, ~~results of operations~~or on the earnings, ~~management, properties~~ business affairs or business prospects of the Company and its ~~Subsidiaries~~subsidiaries considered as one enterprise. (iv) If the Company has one or more significant subsidiaries, ~~taken~~ as defined in Rule 405 of the Act (each, a “Significant Subsidiary”), each Significant Subsidiary has been duly incorporated or formed and is validly existing as a ~~whole. 3. The issued~~ corporation, partnership, limited liability company or real estate investment trust in good standing or in full force and ~~outstanding shares of capital stock or other ownership interests of each Subsidiary formed~~ effect, as the case may be, under the laws of the ~~State~~ jurisdiction of ~~Delaware~~ its incorporation or formation, has corporate, partnership, limited liability company or real estate investment trust power and authority to own, lease and operate its properties and to conduct its business, and is duly qualified as a foreign corporation, partnership, limited liability company or real estate investment trust to transact business and is in good standing or full force and effect, as the case may be, in each jurisdiction in which it owns real property, except where the failure to so qualify or be in good standing or full force and effect would not have a material adverse effect 25 on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise. (v) The number of issued and outstanding capital shares of the Company is as set forth in the Disclosure Package and the Prospectus under “Capitalization,” and the outstanding capital shares of the Company have been duly authorized, validly issued, and are fully paid and non-assessable. The capital shares of the Company conform to the description thereof contained in the Disclosure Package and the Prospectus. All of the issued and outstanding capital stock of the Company's Significant Subsidiaries have been duly authorized and validly ~~issued and~~ issued, are fully paid and non-assessable and, to the best of such counsel's knowledge, except as ~~otherwise set forth~~ disclosed in the Disclosure Package and the Prospectus, are owned by the Company ~~either directly or through wholly-owned subsidiaries~~ free and clear of any security interest, ~~claim,~~ mortgage, pledge, lien, ~~encumbrance~~ encumbrance, claim or equity, except for such security interests, mortgages, pledges, liens, encumbrances, claims or equities that would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise. (vi) Each of this Agreement and any applicable Terms Agreement has been duly authorized, executed and delivered by the Company. (vii) The Shares have been duly and validly authorized by all necessary corporate action and such Shares have been duly authorized for issuance and sale pursuant to this Agreement and any applicable Terms Agreement or any of the Alternative Distribution Agreements and any applicable terms agreement thereunder, as the case may be. Such Shares, when issued and delivered pursuant to this Agreement and any applicable Terms Agreement against payment of the consideration therefor, will be validly issued, fully paid and non-assessable. (viii) The issuance of the Shares will not be subject to any preemptive or other ~~restriction~~ similar rights of any ~~kind, and are subject to no preemptive rights~~ shareholder of the Company arising by operation of law or ~~options arising~~ under the ~~Delaware General Corporation Law~~ charter or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, by-laws of the ~~part of Registration Statement relating~~ Company or, to the ~~Shares for purposes~~ best of ~~the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares~~their knowledge, ~~the Disclosure Package~~ otherwise; and, except as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference set forth in the Disclosure Package and the Prospectus, as no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, capital shares of ~~its respective filing~~ or ~~effective date, appeared on its face to be appropriately responsive~~ ownership interests in the Company are outstanding. (ix) The Shares conform in all material respects to the ~~applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy~~ statements ~~under Regulation 14A, as~~ relating thereto contained in the ~~case may be, under the Exchange Act~~ Disclosure Package and the ~~rules~~ Prospectus; and ~~regulations of~~ the ~~Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or~~ certificates for the ~~financial statements, schedules or other financial data included in, or omitted from, such documents~~Shares are in valid and sufficient form. ~~6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency~~ (x) The Registration Statement is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made effective under the Act ~~(except with respect~~ and, to ~~any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with~~ the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any best of their ~~respective properties or assets may be bound or affected and which have been filed as exhibits to~~ knowledge, no stop order suspending the effectiveness of the Registration Statement ~~or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon~~ has been issued under the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations Act or proceedings ~~pending,~~ therefor initiated or threatened ~~or contemplated to which~~ by the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9Commission. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any Any required filing of the Base Prospectus and the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b)~~; and, based solely on a review of the list of stop orders on the Commission’s website~~ . (~~▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇~~xi) ~~on the date hereof, no stop order suspending the effectiveness of the~~ The Registration Statement and ~~no order directed at any document~~ the Prospectus (other than the documents incorporated by reference therein and the financial statements, related notes and schedules and other financial data and statistical data derived from the financial statements included or incorporated by reference in the Registration Statement or the Prospectus or ~~any amendment~~ omitted therefrom, as to which no opinion need be rendered) as of their respective effective or ~~supplement thereto~~issue dates, ~~has been issued, nor has any proceeding~~ complied as to form in all material respects with the requirements for registration statements on Form S-3 under the ~~purpose been instituted or threatened by~~ Act and the ~~Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance~~rules thereunder. (iixii) ~~In rendering such opinion~~Each document filed pursuant to the Exchange Act (other than the financial statements, ~~such counsel may state that its~~ related schedules and other financial data and statistical data derived from the financial statements included or incorporated by reference therein, as to which no opinion ~~is limited~~ need be rendered) and incorporated or deemed to ~~matters governed~~ be incorporated by reference in the ~~federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California~~ Disclosure Package and the ~~Delaware General Corporation Law. Such counsel shall also have furnished~~ Prospectus complied when so filed as to form in all material respects with the ~~Manager~~Exchange Act. (xiii) To the best of their knowledge, ~~on every date specified~~ there are no legal or governmental proceedings pending or threatened which are required to be disclosed in ~~Section 4(l) of this Agreement~~the Prospectus, ~~a written statement~~other than those disclosed therein, ~~addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager~~and, to the ~~effect~~ best of their knowledge, all pending legal or governmental proceedings to which the Company or its Significant Subsidiaries is a party or of which any of the property of the Company or its subsidiaries is the subject that ~~(x) such counsel has acted as counsel~~ are not described in the Registration Statement, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material to the business of the Company and its subsidiaries considered as one enterprise. (xiv) To the best of their knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Registration Statement or to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto, and the descriptions thereof or references thereto are correct in all material respects. (xv) No authorization, approval or consent of any court or governmental authority or agency is required that has not been obtained in connection with the ~~preparation~~ consummation by the Company of the transactions contemplated by this Agreement or any applicable Terms Agreement, except such as may be required under the Act, the Exchange Act, and state securities laws or blue sky laws or real estate syndication laws; and to the best of their knowledge, the execution and delivery of this Agreement and any applicable Terms Agreement and the consummation of the transactions contemplated herein and therein and compliance by the Company with its obligations hereunder and thereunder will not (A) constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Significant Subsidiary pursuant to, any contract, indenture, mortgage, loan agreement, note, lease or other instrument that is filed or incorporated by reference as an exhibit to the Registration Statement to which the Company or any Significant Subsidiary is a party or by which they are bound or to which any of the property or assets of the Company or any Significant Subsidiary is subject, except (i) where such breach, default, creation or imposition would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise and (ii) that such counsel expresses no opinion with respect to compliance with financial covenants or tests, or (B) result in a violation of the provisions of any administrative or court order or decree to which the Company or any of its subsidiaries is subject and which is known to such counsel, the charter or by-laws or other organizational document of the Company or any Significant Subsidiary or any applicable law or administrative regulation. (xvi) Neither the Company nor any Significant Subsidiary is, or will be immediately after the consummation of the transactions contemplated by this Agreement and any applicable Terms Agreement, required to be registered under the Investment Company Act. (xvii) The information in the Disclosure Package and the Prospectus under the captions “Description of Common Shares,” “Certain Anti-Takeover Provisions” and “Certain Federal Income Tax Considerations,” to the extent that it constitutes matters of law or legal conclusions, has been reviewed by them and is correct in all material respects. (xviii) The Company has qualified as a REIT for each of its taxable years ended December 31, 1993 through its most recently completed taxable year and the Company is organized in conformity with the requirements for qualification as a REIT, and the Company's current and proposed method of operation will enable it to continue to meet the requirements for qualification and taxation as a REIT under the Code for its current taxable year and for future taxable years. (xix) No holders of securities of the Company have rights to the registration of such securities under the Registration Statement. In addition, such counsel shall state that they have examined various documents and records and participated in conferences with officers and other representatives of the Company, representatives of the Accountants and with representatives of the Manager at which the contents of the Registration Statement, the Disclosure Package and the ~~Prospectus~~ Prospectus, and ~~has reviewed~~ any supplements or amendments thereto, and related matters were discussed and, although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package or the Prospectus, including the documents incorporated by reference therein (other than as specified above), and ~~(y) subject to the foregoing, such counsel confirms that~~any supplements or amendments thereto, on the basis of the ~~information gained in the course of performing the services referred to therein~~foregoing, ~~nothing~~ no facts came to ~~such counsel’s~~ their attention that ~~leads such counsel~~ caused them to believe that (i) the Registration ~~Statement~~Statement or any amendments thereto, on as of the most recent deemed effective ~~date,~~ date pursuant to Rule 430B(f)(2) ~~under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11~~ of the Act ~~in connection with~~ prior to the ~~sale~~ delivery of ~~the Shares~~such opinion, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the ~~Prospectus~~Disclosure Package, as ~~of its date, and as of~~ amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained ~~or contains any~~ an untrue statement of a material fact or omitted ~~or omits~~ to state ~~any~~ a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the ~~Disclosure Package~~Prospectus, as ~~amended~~ of its date or ~~supplemented~~ at the ~~Execution Time or at any applicable date related to the delivery of such opinion~~relevant Representation Date, contained ~~any~~ an untrue statement of a material fact or omitted 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; provided~~misleading (in each case, ~~however, such counsel is not passing upon and does not (a) assume any responsibility for~~ other than the ~~accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package~~ Form T-1 and the ~~Prospectus (except as~~ financial statements, related notes and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial data and statistical data derived from the financial statements included or incorporated by reference ~~in,~~ therein or omitted ~~from~~therefrom, ~~the Registration Statement, the Disclosure Package or the Prospectus~~as to which such counsel need express no statement). References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement ~~Date~~Date or Time of Delivery, as applicable. With respect to statements contained in the Disclosure Package, any statement contained in any of the constituent documents shall be deemed to be modified or superseded to the extent that any information contained in subsequent constituent documents modifies or replaces such statement. (c) The ~~Company~~ Manager shall have ~~requested and caused Maryland Counsel to furnish to~~ received from Sidley Austin LLP, counsel for the Manager, on every date specified in Section 4(m) of this Agreement, ~~its opinion~~such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the ~~effect that:~~ issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (itogether with any supplement thereto) ~~The~~ and other related matters as the Manager may reasonably require, and the Company ~~has been duly incorporated and is validly existing~~ shall have furnished to such counsel such documents as ~~a corporation in good standing under~~ they request for the purpose of enabling them to pass upon such matters. In giving their opinions, Sidley Austin llp may rely as to matters involving the laws of the State of ~~Maryland. (ii) The~~ Ohio upon the opinion of Company ~~has the corporate power~~ Counsel, and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms Counsel may rely as to ~~legal~~ matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to involving the laws of the State of ~~Maryland~~New York upon the opinion of Sidley Austin llp. Company Counsel and Sidley Austin llp may rely (i) as to the qualification of the Company or its subsidiaries to do business in any state or jurisdiction, ~~and Maryland Counsel need express no opinion with respect to any federal~~ upon certificates of appropriate government officials, telephonic confirmation by representatives of such states or ~~state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii)~~ confirmation from information contained on the websites of such states and (ixii) ~~above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws~~ as to ~~which Maryland Counsel need express no opinion)~~matters of fact, ~~if any,~~ upon certificates and ~~those approvals, authorizations, consents, orders~~ written statements of officers and employees of and accountants for the Company or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreementits subsidiaries. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chairman of the Board, President and Chief Executive Officer ~~or the President~~ and the principal financial or accounting officer ~~of the Company, on behalf~~ of the Company, dated as of such date, to the effect that the signers of such certificate have carefully examined the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Company has compli

Appears in 1 contract

Sources: Equity Distribution Agreement (Associated Estates Realty Corp)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(x) of this Agreement; any ~~other~~ material required to be filed by the Company pursuant to Rule 433(d) ~~under~~ of the ~~Act,~~ Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The Company shall have requested and caused the Company Counsel to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: ~~1. Based solely on certificates of public officials,~~ (i) ~~each of the~~ The Company has been duly organized and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a ~~corporation,~~ corporation in good standing under the laws of the State of ~~Delaware, with~~ Ohio. (ii) The Company has all requisite corporate power and authority to ~~own or lease~~own, ~~as the case may be,~~ lease and operate its properties and to conduct its business as described in the Disclosure Package and the ~~Prospectus,~~ Prospectus and to enter into and perform its obligations under this Agreement and any applicable Terms Agreement. (iii) The Company is duly qualified to transact business and is in good standing in each jurisdiction in which it owns real property except where the failure to qualify and be ~~so qualified and~~ in good standing would not ~~reasonably be expected to~~ have a material adverse effect on the ~~business~~condition, financial ~~condition~~or otherwise, ~~results of operations~~or on the earnings, ~~management, properties~~ business affairs or business prospects of the Company and its ~~Subsidiaries~~subsidiaries considered as one enterprise. (iv) If the Company has one or more significant subsidiaries, ~~taken~~ as defined in Rule 405 of the Act (each, a “Significant Subsidiary”), each Significant Subsidiary has been duly incorporated or formed and is validly existing as a ~~whole. 3. The issued~~ corporation, partnership, limited liability company or real estate investment trust in good standing or in full force and ~~outstanding shares of capital stock or other ownership interests of each Subsidiary formed~~ effect, as the case may be, under the laws of the ~~State~~ jurisdiction of ~~Delaware~~ its incorporation or formation, has corporate, partnership, limited liability company or real estate investment trust power and authority to own, lease and operate its properties and to conduct its business, and is duly qualified as a foreign corporation, partnership, limited liability company or real estate investment trust to transact business and is in good standing or full force and effect, as the case may be, in each jurisdiction in which it owns real property, except where the failure to so qualify or be in good standing or full force and effect would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise. (v) The number of issued and outstanding capital shares of the Company is as set forth in the Disclosure Package and the Prospectus under “Capitalization,” and the outstanding capital shares of the Company have been duly authorized, validly issued, and are fully paid and non-assessable. The capital shares of the Company conform to the description thereof contained in the Disclosure Package and the Prospectus. All of the issued and outstanding capital stock of the Company’s Significant Subsidiaries have been duly authorized and validly ~~issued and~~ issued, are fully paid and non-assessable and, to the best of such counsel’s knowledge, except as ~~otherwise set forth~~ disclosed in the Disclosure Package and the Prospectus, are owned by the Company ~~either directly or through wholly-owned subsidiaries~~ free and clear of any security interest, ~~claim,~~ mortgage, pledge, lien, ~~encumbrance~~ encumbrance, claim or equity, except for such security interests, mortgages, pledges, liens, encumbrances, claims or equities that would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise. (vi) Each of this Agreement and any applicable Terms Agreement has been duly authorized, executed and delivered by the Company. (vii) The Shares have been duly and validly authorized by all necessary corporate action and such Shares have been duly authorized for issuance and sale pursuant to this Agreement and any applicable Terms Agreement. Such Shares, when issued and delivered pursuant to this Agreement and any applicable Terms Agreement against payment of the consideration therefor, will be validly issued, fully paid and non-assessable. (viii) The issuance of the Shares will not be subject to any preemptive or other ~~restriction~~ similar rights of any ~~kind, and are subject to no preemptive rights~~ shareholder of the Company arising by operation of law or ~~options arising~~ under the ~~Delaware General Corporation Law~~ charter or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, by-laws of the ~~part of Registration Statement relating~~ Company or, to the ~~Shares for purposes~~ best of ~~the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares~~their knowledge, ~~the Disclosure Package~~ otherwise; and, except as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference set forth in the Disclosure Package and the Prospectus, as no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, capital shares of ~~its respective filing~~ or ~~effective date, appeared on its face to be appropriately responsive~~ ownership interests in the Company are outstanding. (ix) The Shares conform in all material respects to the ~~applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy~~ statements ~~under Regulation 14A, as~~ relating thereto contained in the ~~case may be, under the Exchange Act~~ Disclosure Package and the ~~rules~~ Prospectus; and ~~regulations of~~ the ~~Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or~~ certificates for the ~~financial statements, schedules or other financial data included in, or omitted from, such documents~~Shares are in valid and sufficient form. ~~6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency~~ (x) The Registration Statement is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made effective under the Act ~~(except with respect~~ and, to ~~any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with~~ the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any best of their ~~respective properties or assets may be bound or affected and which have been filed as exhibits to~~ knowledge, no stop order suspending the effectiveness of the Registration Statement ~~or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon~~ has been issued under the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations Act or proceedings ~~pending,~~ therefor initiated or threatened ~~or contemplated to which~~ by the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9Commission. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any Any required filing of the Base Prospectus and the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b)~~; and, based solely on a review of the list of stop orders on the Commission’s website~~ . (~~▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇~~xi) ~~on the date hereof, no stop order suspending the effectiveness of the~~ The Registration Statement and ~~no order directed at any document~~ the Prospectus (other than the documents incorporated by reference therein and the financial statements, related notes and schedules and other financial and statistical data included or incorporated by reference in the Registration Statement or the Prospectus or ~~any amendment~~ omitted therefrom, as to which no opinion need be rendered) as of their respective effective or ~~supplement thereto~~issue dates, ~~has been issued, nor has any proceeding~~ complied as to form in all material respects with the requirements for registration statements on Form S-3 under the ~~purpose been instituted or threatened by~~ Act and the ~~Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance~~rules thereunder. (iixii) ~~In rendering such opinion~~Each document filed pursuant to the Exchange Act (other than the financial statements, ~~such counsel may state that its~~ related schedules and other financial and statistical data included or incorporated by reference therein, as to which no opinion ~~is limited~~ need be rendered) and incorporated or deemed to ~~matters governed~~ be incorporated by reference in the ~~federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California~~ Disclosure Package and the ~~Delaware General Corporation Law. Such counsel shall also have furnished~~ Prospectus complied when so filed as to form in all material respects with the ~~Manager~~Exchange Act. (xiii) To the best of their knowledge, ~~on every date specified~~ there are no legal or governmental proceedings pending or threatened which are required to be disclosed in ~~Section 4(l) of this Agreement~~the Prospectus, ~~a written statement~~other than those disclosed therein, ~~addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager~~and, to the ~~effect~~ best of their knowledge, all pending legal or governmental proceedings to which the Company or its Significant Subsidiaries is a party or of which any of the property of the Company or its subsidiaries is the subject that ~~(x) such counsel has acted as counsel~~ are not described in the Registration Statement, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material to the business of the Company and its subsidiaries considered as one enterprise. (xiv) To the best of their knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Registration Statement or to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto, and the descriptions thereof or references thereto are correct in all material respects. (xv) No authorization, approval or consent of any court or governmental authority or agency is required that has not been obtained in connection with the ~~preparation~~ consummation by the Company of the transactions contemplated by this Agreement or any applicable Terms Agreement, except such as may be required under the Act, the Exchange Act, and state securities laws or blue sky laws or real estate syndication laws; and to the best of their knowledge, the execution and delivery of this Agreement and any applicable Terms Agreement and the consummation of the transactions contemplated herein and therein and compliance by the Company with its obligations hereunder and thereunder will not (A) constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Significant Subsidiary pursuant to, any contract, indenture, mortgage, loan agreement, note, lease or other instrument that is filed or incorporated by reference as an exhibit to the Registration Statement to which the Company or any Significant Subsidiary is a party or by which they are bound or to which any of the property or assets of the Company or any Significant Subsidiary is subject, except (i) where such breach, default, creation or imposition would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise and (ii) that such counsel expresses no opinion with respect to compliance with financial covenants or tests, or (B) result in a violation of the provisions of any administrative or court order or decree to which the Company or any of its subsidiaries is subject and which is known to such counsel, the charter or by-laws or other organizational document of the Company or any Significant Subsidiary or any applicable law or administrative regulation. (xvi) Neither the Company nor any Significant Subsidiary is, or will be immediately after the consummation of the transactions contemplated by this Agreement and any applicable Terms Agreement, required to be registered under the Investment Company Act. (xvii) The information in the Disclosure Package and the Prospectus under the captions “Description of Common Shares,” “Certain Anti-Takeover Provisions” and “Certain Federal Income Tax Considerations,” to the extent that it constitutes matters of law or legal conclusions, has been reviewed by them and is correct in all material respects. (xviii) The Company has qualified as a REIT for each of its taxable years ended December 31, 1993 through 2009 and the Company is organized in conformity with the requirements for qualification as a REIT, and the Company’s current and proposed method of operation will enable it to continue to meet the requirements for qualification and taxation as a REIT under the Code for its taxable year ending December 31, 2010 and for future taxable years. (xix) No holders of securities of the Company have rights to the registration of such securities under the Registration Statement. In addition, such counsel shall state that they have examined various documents and records and participated in conferences with officers and other representatives of the Company, representatives of the Accountants and with representatives of the Manager at which the contents of the Registration Statement, the Disclosure Package and the ~~Prospectus~~ Prospectus, and ~~has reviewed~~ any supplements or amendments thereto, and related matters were discussed and, although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package or the Prospectus, including the documents incorporated by reference therein (other than as specified above), and ~~(y) subject to the foregoing, such counsel confirms that~~any supplements or amendments thereto, on the basis of the ~~information gained in the course of performing the services referred to therein~~foregoing, ~~nothing~~ no facts came to ~~such counsel’s~~ their attention that ~~leads such counsel~~ caused them to believe that (i) the Registration ~~Statement~~Statement or any amendments thereto, on as of the most recent deemed effective ~~date,~~ date pursuant to Rule 430B(f)(2) ~~under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11~~ of the Act ~~in connection with~~ prior to the ~~sale~~ delivery of ~~the Shares~~such opinion, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the ~~Prospectus~~Disclosure Package, as ~~of its date, and as of~~ amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained ~~or contains any~~ an untrue statement of a material fact or omitted ~~or omits~~ to state ~~any~~ a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the ~~Disclosure Package~~Prospectus, as ~~amended~~ of its date or ~~supplemented~~ at the ~~Execution Time or at any applicable date related to the delivery of such opinion~~relevant Representation Date, contained ~~any~~ an untrue statement of a material fact or omitted 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; provided~~misleading (in each case, ~~however, such counsel is not passing upon and does not (a) assume any responsibility for~~ other than the ~~accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package~~ Form T-1 and the ~~Prospectus (except as~~ financial statements, related notes and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference ~~in,~~ therein or omitted ~~from~~therefrom, ~~the Registration Statement, the Disclosure Package or the Prospectus~~as to which such counsel need express no statement). References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement ~~Date~~Date or Time of Delivery, as applicable. With respect to statements contained in the Disclosure Package, any statement contained in any of the constituent documents shall be deemed to be modified or superseded to the extent that any information contained in subsequent constituent documents modifies or replaces such statement. (c) The ~~Company~~ Manager shall have ~~requested and caused Maryland Counsel to furnish to~~ received from Sidley Austin LLP, counsel for the Manager, on every date specified in Section 4(m) of this Agreement, ~~its opinion~~such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the ~~effect that:~~ issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (itogether with any supplement thereto) ~~The~~ and other related matters as the Manager may reasonably require, and the Company ~~has been duly incorporated and is validly existing~~ shall have furnished to such counsel such documents as ~~a corporation in good standing under~~ they request for the purpose of enabling them to pass upon such matters. In giving their opinions, Sidley Austin llp may rely as to matters involving the laws of the State of ~~Maryland. (ii) The~~ Ohio upon the opinion of Company ~~has the corporate power~~ Counsel, and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms Counsel may rely as to ~~legal~~ matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to involving the laws of the State of ~~Maryland~~New York upon the opinion of Sidley Austin llp. Company Counsel and Sidley Austin llp may rely (i) as to the qualification of the Company or its subsidiaries to do business in any state or jurisdiction, ~~and Maryland Counsel need express no opinion with respect to any federal~~ upon certificates of appropriate government officials, telephonic confirmation by representatives of such states or ~~state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii)~~ confirmation from information contained on the websites of such states and (ixii) ~~above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws~~ as to ~~which Maryland Counsel need express no opinion)~~matters of fact, ~~if any,~~ upon certificates and ~~those approvals, authorizations, consents, orders~~ written statements of officers and employees of and accountants for the Company or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreementits subsidiaries. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the ~~Chief Executive Officer~~ Chairman of the Board or the President and the principal financial or accounting officer ~~of the Company, on behalf~~ of the Company, dated as of such date, to the effect that the signers of such certificate have carefully examined the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date;

Appears in 1 contract

Sources: Equity Distribution Agreement (Associated Estates Realty Corp)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement with respect to a Placement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable ~~Time, Settlement Date~~ Time and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) ~~The Prospectus, and any~~ Any supplement ~~thereto,~~ to the Prospectus required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The Company shall have requested and caused the Company ~~Counsel~~ Counsel, to furnish to the Manager, on ~~every date~~ the dates specified in Section ~~4(l~~4(l)(i) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance reasonably satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The Company shall have requested and caused ~~Maryland Counsel~~ ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇ LLP, intellectual property counsel for the Company, to furnish to the Manager, on ~~every date~~ the dates specified in Section ~~4(m~~4(l)(ii) of this Agreement, its opinion, dated as of such date and addressed to the Manager, in form and substance reasonably satisfactory to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution AgreementManager. (d) The ~~Company~~ Manager shall have ~~requested and caused Tax Counsel to furnish to~~ received from ▇▇▇▇▇▇ LLP, counsel for the Manager, on ~~every~~ each date ~~specified in~~ which the delivery of the Company Counsel legal opinion is required pursuant to Section ~~4(n~~4(l)(i) of this Agreement, ~~its opinion~~such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and ~~in form~~ sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as ~~set forth on Exhibit A.~~the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (e) The Company shall have furnished or caused to be furnished to the Manager, on ~~every date~~ the dates specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chairman of the Board, the President, the Chief Executive Officer or the ~~President and the~~ principal financial or principal accounting officer ~~of the Company, on behalf~~ of the Company, dated as of such date, to the effect that the ~~signers~~ signer of such certificate ~~have~~ has carefully examined the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (iii) since the date of the most recent financial statements included in the Disclosure Package, there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus. (f) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(m) hereof, the Comfort Letter that is required to be delivered pursuant to Section 4(m) hereof (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance reasonably satisfactory to the Manager, (g) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease in financial statement items specified in the letter or letters referred to in paragraph (f) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth or contemplated in the Disclosure Package, the effect of which is, in any case referred to in clause (i) or (ii) above, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to market the Shares on the terms and in the manner contemplated in the Disclosure Package and the Prospectus. (h) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus or prospectus supplement filed pursuant to Rule 424(b). (i) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. (j) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (k) The Shares shall have been listed and admitted and authorized for trading on Nasdaq, and satisfactory evidence of such actions shall have been provided to the Manager. (l) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or electronic mail and confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇ LLP, counsel for the Manager, at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on each such date as provided in this Agreement.

Appears in 1 contract

Sources: Equity Distribution Agreement (Apellis Pharmaceuticals, Inc.)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of ~~Delivery~~Delivery (it being acknowledged that representations and warranties that specify facts or circumstances as of a specific date or time shall continue to address the facts or circumstances at such date or time irrespective of when the representation or warranty is re-affirmed), (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission shall have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; any other material required to be filed by the Company pursuant to Rule 433(d) under the 1933 Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or ~~threatened~~threatened by the Commission. (ib) The Company shall have requested and caused ▇▇▇▇▇ ▇▇▇▇▇▇, Esq. Executive Vice President and General Counsel of the ~~Company~~ Company, or ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., Senior Vice President and Deputy General Counsel of the Company, to furnish to the Manager, on every date specified in Section ~~4(l~~4(m) of this Agreement, ~~its~~ his opinion, dated as of such date and addressed to the Manager, to the effect that: ~~1. Based solely on certificates of public officials,~~ (i) ~~each of the~~ The Company has been duly incorporated and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing ~~as a corporation,~~ in good standing under the laws of the State of ~~Delaware, with~~ Texas and has corporate power and authority to own its properties and conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement and any Terms Agreement; and the Company is duly qualified to do business as a foreign corporation in good standing in all other jurisdictions in which its ownership or ~~lease~~lease of property or the conduct of its business requires such qualification, as except where the ~~case may be~~failure to so qualify would not reasonably be expected, individually or in the aggregate, to have a Material Adverse Effect; (ii) Each Significant Subsidiary of the Company has been duly formed and is validly existing in good standing under the laws of the jurisdiction of its formation, with power and authority (corporate or other) to own its properties and conduct its business as described in the Disclosure Package and the Prospectus; and each Significant Subsidiary of the Company is duly qualified to do business as a foreign corporation, limited partnership or limited liability company in good standing in all other jurisdictions in which its ownership or lease of property or the conduct of its business requires such qualification, except where the failure to be so ~~qualified and in good standing~~ qualify would not reasonably be ~~expected~~ expected, individually or in the aggregate, to have a ~~material adverse effect on the business, financial condition, results of operations, management, properties or prospects~~ Material Adverse Effect; all of the ~~Company and its Subsidiaries, taken as a whole. 3. The~~ issued and outstanding ~~shares of capital stock or other~~ ownership interests of each Significant Subsidiary ~~formed under the laws~~ of the ~~State~~ Company have been duly authorized and validly issued in accordance with the organizational documents of ~~Delaware~~ such Significant Subsidiary; and the ownership interests of each Significant Subsidiary owned by the Company, directly or through subsidiaries, is owned free from liens, encumbrances and defects; (iii) The Company’s authorized equity capitalization is as set forth in the Disclosure Package and the Prospectus and the capital stock of the Company conforms, as to legal matters, in all material respects to the description thereof contained in the Disclosure Package and the Prospectus; the outstanding shares of Common Stock have been duly authorized and validly issued and are fully paid and ~~non-assessable~~ nonassessable; and, except (i) as ~~otherwise~~ set forth in the Disclosure Package and the ~~Prospectus~~Prospectus and (ii) for options, restricted stock and performance shares granted pursuant to the CenterPoint Energy, Inc. Long-Term Incentive Plan and the CenterPoint Energy, Inc. Stock Plan for Outside Directors, no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, shares of capital stock of or ownership interests in the Company, which were granted by the Company, are ~~owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest~~outstanding; (iv) No consent, ~~claim~~approval, ~~mortgage, pledge, lien, encumbrance~~ authorization or other ~~restriction of~~ order of, or registration with, any ~~kind, and are subject to no preemptive rights or options arising~~ governmental regulatory body (other than such as may be required under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefromapplicable state securities laws, as to which ~~no opinion~~ such counsel need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency not express an opinion) is required ~~in connection with~~ for the issuance and sale of the Shares by or for the ~~Company and~~ consummation by the Company of the transactions contemplated by this Agreement or any Terms Agreement; (v) To such counsel’s knowledge and other than ~~such~~ as ~~have been obtained~~ set forth or ~~made under~~ contemplated in the ~~Act (except with respect to any qualification under state securities~~Disclosure Package and the Prospectus, ~~foreign securities~~ there are no legal or ~~blue sky laws of any jurisdiction in connection with the sale of the Shares~~ governmental proceedings pending or ~~under the rules and regulations of FINRA, as~~ threatened to which ~~no opinion need be rendered).~~the Company is subject, which, individually or in the aggregate, have a reasonable possibility of having a Material Adverse Effect; 7. (vi) The ~~execution~~ execution, delivery and ~~delivery~~ performance by the Company of this Agreement and any Terms Agreement, and the issuance and sale of the ~~Shares do not and the performance by the Company of its obligations under this Agreement~~ Shares, will not result in ~~any~~ the breach of or violation of, or constitute a default ~~under~~ under, (ia) the Restated Articles of Incorporation, the Amended and Restated Bylaws or other organizational documents of the Company, each as amended to date, (b) any indenture, mortgage, deed of ~~trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract~~ trust or other agreement or instrument for borrowed money to which the Company ~~or any of its Subsidiaries~~ is a party or by which ~~any of them or any of their respective properties or assets may be~~ it is bound or ~~affected and~~ to which ~~have been filed as exhibits to the Registration Statement~~ its property is subject or ~~incorporated by reference therein,~~ (iic) any ~~federal~~law, ~~California, Delaware or New York State law~~order, rule or regulation ~~binding upon~~ of any court or governmental agency or body having jurisdiction over the Company or its property, in any manner which, in the case of ~~its Subsidiaries or their respective properties or assets~~clause (b), or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law individually or in ~~equity before~~ the aggregate, would have a Material Adverse Effect; (vii) The description of statutes and regulations set forth in Part I of the Company’s most recent Annual Report on Form 10-K under the captions “Business—Regulation” and “Business—Environmental Matters,” and those described elsewhere in the Disclosure Package and the Prospectus, fairly describe in all material respects the portions of the statutes and regulations addressed thereby; and (viii) Such counsel does not know of any contracts or ~~by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are~~ documents of a character required to be described in the Registration Statement, ~~the~~ Disclosure Package or Prospectus or to be filed as exhibits to the ~~Disclosure Package but~~ Registration Statement which are not so ~~described. 9. The Company is not,~~ described and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Datefiled. (c) The Company shall have requested and caused ~~Maryland Counsel~~ ▇▇▇▇▇ ▇▇▇▇▇ L.L.P., counsel of the Company, to furnish to the Manager, on every date specified in Section 4(m) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: (i) The ~~Company has been duly incorporated and is validly existing as a corporation~~ statements set forth in ~~good standing~~ the Basic Prospectus under the caption “Description of Our Capital Stock” accurately summarize in all material respects the provisions of the Company’s Amended and Restated Articles of Incorporation, Amended and Restated Bylaws, the Rights Agreement and applicable laws of the State of ~~Maryland. (ii) The Company has the corporate power and authority to own or lease its properties~~Texas described therein, ~~to conduct its business as described in the Disclosure Package~~ and the ~~Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package~~ Shares and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6Rights conform, ~~2016 (the “Form 8-K”). The authorized capital stock of the Company conforms~~ as to legal ~~matters~~ matters, in all material respects to the ~~description~~ descriptions thereof contained in the Disclosure Package and the Prospectus, including, without limitation, the description in the Basic Prospectus under the ~~captions “General Description of the Offered Securities” and~~ caption “Description of Our Capital Stock”; (ii) The Shares have been duly and validly authorized by all necessary corporate action on the part of the Company and, when issued and delivered against payment therefor pursuant to the terms of this Agreement and any Terms Agreement, such Shares will be duly and validly issued, fully paid and nonassessable; and the issuance of the Shares will not be subject to any preemptive or similar rights under the Restated Articles of Incorporation or the Amended and Restated Bylaws of the Company, each as amended to date, or the Texas Business Corporation Act to subscribe for shares of Common Stock~~” as supplemented~~ ; (iii) The Registration Statement has become effective under the 1933 Act; any required filing of the Basic Prospectus and the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); to such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement or any part thereof has been issued and no proceedings for that purpose or pursuant to Section 8A of the 1933 Act against the Company or related to the offering have been instituted and are pending or are threatened by the ~~information in Item 5.03~~ Commission under the 1933 Act; the Registration Statement, as of the ~~Form 8-K~~most recent Effective Date, and the Prospectus, as ~~applicable.~~of its date and on the date of such opinion (except for the financial statements, pro forma financial statements and financial statement schedules contained or incorporated by reference therein (including the notes thereto and the auditors’ reports thereon), as to which such counsel need not express an opinion) appear on their face to have complied or to comply as to form in all material respects with the requirements of the 1933 Act and the applicable rules and regulations of the Commission thereunder, and each document incorporated by reference therein as originally filed pursuant to the 1934 Act (except for the financial statements, pro forma financial statements and financial statement schedules contained or incorporated by reference therein (including the notes thereto and the auditors’ reports thereon), as to which such counsel need not express an opinion) when so filed appears on its face to have complied as to form in all material respects with the 1934 Act and the applicable rules and regulations of the Commission thereunder; (iv) The execution, delivery and performance by the Company of this Agreement and any Terms Agreement has been duly authorized by all necessary corporate action on the part of the Company, and this Agreement and any Terms Agreement has been duly executed and delivered by the Company; (v) No consent, approval, authorization or other order of, or registration with, any governmental regulatory body under the Act or the Exchange Act is required for the issuance and sale of the Shares or for the consummation by the Company of the transactions contemplated by this Agreement or any Terms Agreement, except such as have been obtained under the Act; (vi) The Rights Agreement has been duly executed and delivered by the Company; the issuance of the Rights associated with the Shares ~~have~~ has been duly authorized by all necessary corporate action on the part of the Company ~~under its charter and bylaws and~~ and, upon issuance in connection with the ~~Maryland General Corporation Law~~issuance of the associated Shares as provided in paragraph (ii) above, and ~~when Shares are issued, delivered and paid for as contemplated by~~ in accordance with the ~~Directors’ Resolutions and this~~ terms of the Rights Agreement, ~~such Shares~~ the Rights will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company.; and (vii) The ~~statements included~~ Company is not and, after giving effect to the offering and sale of the Shares and the application of the proceeds thereof as described in ~~(a)~~ the Disclosure Package and Prospectus, will not be an “investment company” as defined in the Investment Company Act. In addition, such counsel shall state that such counsel have participated in conferences with officers and other representatives of the Company, representatives of the independent public accountants of the Company and representatives of the Manager, at which the contents of the Registration Statement, the Disclosure Package and the Prospectus ~~under~~ and related matters were discussed. Although such counsel have not undertaken to determine independently, and do not assume any responsibility for, the ~~captions “General Description~~ accuracy, completeness or fairness of the ~~Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information~~ statements contained in ~~Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of~~ the Registration Statement, ~~insofar as such statements summarize matters of Maryland law~~ the Disclosure Package and the Prospectus or ~~the charter or bylaws~~ any of the ~~Company~~documents incorporated by reference in the Registration Statement, ~~are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of~~ the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company Disclosure Package and the ~~issuance, sale and delivery of~~ Prospectus (except to the ~~Shares does not and will not result~~ extent set forth in ~~any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under):~~ paragraphs (i) ~~the charter or bylaws of the Company,~~ and (ii) ~~any laws~~above), ~~rules or regulations~~ such counsel advises the Manager that, on the basis of the ~~State of Maryland or (iii)~~ foregoing, no facts have come to the ~~knowledge~~ attention of such ~~counsel~~counsel that lead them to believe that the Registration Statement (except for (A) the financial statements, ~~any decree, judgment~~ pro forma financial statements and financial statement schedules contained or ~~order of any court or governmental authority of~~ incorporated by reference therein (including the ~~State of Maryland applicable by name to~~ notes thereto and the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (viiauditors’ reports thereon), (~~viii~~B) the other financial information and any statistical information contained or incorporated by reference therein, or omitted therefrom, (C) the representations and warranties and other statements of fact included in any exhibit thereto, and (D) any Form T-1 Statement of Eligibility and Qualification of the Trustee included as an exhibit to the Registration Statement, as to which such counsel need not comment) as of the most recent Effective Date, contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, or that the Prospectus (except for (A) the financial statements, pro forma financial statements and financial statement schedules contained or incorporated by reference therein (including the notes thereto and the auditors’ reports thereon) and (ixB) ~~above may be limited to Maryland Counsel’s consideration of~~ the ~~Maryland General Corporation Law~~ other financial information and ~~only those other Maryland laws (other than securities and tax laws~~ any statistical information contained or incorporated by reference therein, or omitted therefrom, as to which ~~Maryland Counsel~~ such counsel need ~~express no~~ not comment) contained, as of its date, or contains, on the date of such opinion), ~~if any~~any untrue statement therein of a material fact or omitted, ~~and those approvals~~as of its date, ~~authorizations~~or omits, ~~consents~~on the date of such opinion, ~~orders or filings of or with any governmental authority~~ to state a material fact necessary in order to make the statements therein, in the light of the ~~State of Maryland (other than those required~~ circumstances under ~~securities laws and tax laws of~~ which they were made, not misleading. References to the ~~State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described~~ Prospectus in this ~~Equity Distribution Agreement~~paragraph (c) shall also include any supplements thereto at the Settlement Date. (d) The ~~Company~~ Manager shall have ~~requested and caused Tax Counsel to furnish to~~ received from ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Manager, on every date specified in Section 4(n) of this Agreement, ~~its opinion~~such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the issuance and ~~in form~~ sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as ~~set forth on Exhibit A.~~the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they reasonably request for the purpose of enabling them to pass upon such matters. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section ~~4(k~~4(l) of this Agreement, a certificate of the Company, signed by the ~~Chief Executive Officer~~ President or ~~the~~ any Vice President and ~~the~~ a principal financial or accounting officer ~~of the Company, on behalf~~ of the Company, dated as of such date, to the effect that the signers of such certificate have carefully examined the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date (it being acknowledged that representations and warranties that specify facts or circumstances as of a specific date or time shall continue to address the facts or circumstances at such date or time irrespective of when the representation or warranty is re-affirmed) and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (iii) since the date of the most recent financial statements included in the Disclosure Package and the Prospectus, there has been no material adverse change in the business, financial condition, prospects or results of operations of the Company and its subsidiaries, taken as one enterp

Appears in 1 contract

Sources: Equity Distribution Agreement (Centerpoint Energy Inc)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution ~~Time~~Time (as applicable), each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement shall have been filed in the manner required by Rule 424(b) within the time period required by Section 3(a)(ix) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The Company shall have requested and caused the Company ~~Counsel~~ Counsel, to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its ~~opinion~~opinion or Reliance Letter, as applicable, dated as of such date and addressed to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance reasonably satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The Company shall have requested and caused ~~Maryland Counsel~~ the Company IP Counsel, to furnish to the Manager, on every date specified in Section 4(m) of this Agreement, its opinion, dated as of such date and addressed to the Manager, in form and substance reasonably satisfactory to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution AgreementManager. (d) The ~~Company~~ Manager shall have ~~requested and caused Tax Counsel to furnish to the~~ received from Manager’s Counsel, on every date ~~specified in~~ that the delivery of the Company Counsel legal opinion is required pursuant to Section ~~4(n~~4(l) of this Agreement, ~~its opinion~~such opinion or opinions or Reliance Letter, as applicable, dated as of such date and addressed to the Manager, with respect to the issuance and ~~in form~~ sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as ~~set forth on Exhibit A.~~the Manager may reasonably require, and the Company shall have furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the ~~Chief Executive Officer~~ Chairman of the Board or the ~~President~~ chief executive officer and the principal financial or accounting officer ~~of the Company, on behalf~~ of the Company, dated as of such date, to the effect that the signers of such certificate have carefully examined the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (iii) since the date of the most recent financial statements included in the Disclosure Package, there has been no Material Adverse Effect, except as set forth in or contemplated in the Disclosure Package and the Prospectus. (f) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(o) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance reasonably satisfactory to the Manager, confirming that they are independent accountants within the meaning of the Securities Act and the Exchange Act and the respective applicable rules and regulations adopted by the Commission thereunder and that they have performed a review of any unaudited interim financial information of the Company included or incorporated by reference in the Registration Statement and the Prospectus in accordance with Statement on Auditing Standards No. 100. (g) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease in financial statement items specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto). (h) Between the Execution Time and the time of any sale of Shares through the Manager, there shall not have been any decrease in the rating of any of the Company’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Securities Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. (i) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (j) The Shares shall have been listed and admitted and authorized for trading on Nasdaq, and satisfactory evidence of such actions shall have been provided to the Manager. (k) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement, as it relates to the Manager, and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇▇ Procter LLP, counsel for the Manager, at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on each such date as provided in this Agreement.

Appears in 1 contract

Sources: Equity Distribution Agreement (PhaseBio Pharmaceuticals Inc)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: ~~(a)~~ 6.1 The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission shall have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; any ~~other~~ material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or or, to the knowledge of the Company, threatened. ~~(i)~~ 6.2 The Company shall have ~~requested and~~ furnished or caused the Company Counsel to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be ~~so qualified~~ furnished the opinions and ~~in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company~~ letters from its counsel and ~~its Subsidiaries, taken~~ accountants as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. Section 4~~. The Registration Statement~~, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under dates as set forth in Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable4. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as 6.3 The Manager shall have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/received from ▇▇▇▇▇▇, ▇▇▇▇/▇ & ▇▇▇▇▇▇~~▇▇▇▇.▇▇▇▇▇) on the date hereof~~▇ LLP, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding counsel for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The Company shall have requested and caused Maryland Counsel to furnish to the Manager, on every date specified in Section 4(m) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in Section 4, on the ~~Disclosure Package~~ dates as set forth in Section 4, and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreement. (d) The Company shall have ~~requested~~ furnished to such counsel such documents as they request for the purpose of enabling them to pass upon such matters. 6.4 Each of the Manager and ~~caused Tax Counsel to furnish to~~ the ~~Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The~~ Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section ~~4(k)~~ 4.13 of this Agreement, a certificate ~~of the Company, signed~~ by ~~the Chief Executive Officer or the President~~ its principal executive officer and ~~the~~ principal financial ~~or accounting~~ officer ~~of the Company, on behalf of the Company,~~ dated as of such date, to the effect that the ~~signers~~ signer of such certificate ~~have~~ has carefully examined the ~~Registra~~Registration Statement and the Prospectus and any supplements or amendments thereto and this Agreement and that: (a) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; (b) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued by the Commission and no proceedings for that purpose have been instituted or, to such officer's knowledge, threatened; and (c) since the date of the most recent financial statements included in the Prospectus, there has been no material adverse effect on the general affairs, condition (financial or otherwise), results of operations, business, properties, assets or prospects of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Prospectus (exclusive of any supplement thereto). 6.5 The Company shall have requested and caused Deloitte to have furnished to the Manager, on every date specified in Section 4.18 hereof and to the extent reasonably requested by the Manager in connection with any offering of the Shares, comfort letters, dated respectively as of such date, in form and substance reasonably satisfactory to the Manager. 6.6 Subsequent to the respective dates as of which information is disclosed in the Registration Statement and the Prospectus, except as otherwise stated therein, there shall not have been any adverse change, or any development involving a prospective adverse change that would reasonably be expected to have a Material Adverse Effect, which, in the Manager's opinion, would materially and adversely affect the market for Shares. 6.7 Since the date of the most recent financial statements included in the Prospectus, there shall not have been any decrease in the rating of any of the debt securities of the Company by any "nationally recognized statistical rating organization" (as defined in Section 3(a)(62) of the Exchange Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. 6.8 FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. 6.9 The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager. 6.10 Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered to the office of ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, counsel for the Manager, at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, or electronically to ▇▇▇▇▇▇, ▇▇▇▇▇ & Bockius at an address provided by it to the Company or its counsel, on each such date as provided in this Agreement.

Appears in 1 contract

Sources: Equity Distribution Agreement (Dorian LPG Ltd.)

Conditions to the Obligations of the Manager. The obligations of the ~~Manager~~ Managers under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement, as applicable, shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(w) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The Company shall have requested and caused the Company Counsel and In-House Counsel, to furnish to ~~the Manager~~such Managers, on every date specified in Section 4(l) of this Agreement, ~~its opinion~~their opinions and negative assurance letter, as applicable, dated as of such date and addressed to ~~the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to~~ such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such dateManagers, in form and substance satisfactory to ~~the Manager, to the effect that (x)~~ such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement DateManagers. (c) ~~The Company~~ Such Managers shall have ~~requested and caused Maryland Counsel to furnish to the Manager~~received from Managers’ Counsel, on every date specified in Section 4(m) of this Agreement, ~~its opinion~~such opinion or opinions, dated as of such date and addressed to ~~the Manager~~such Managers, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the ~~Prospectus and~~ Company shall have furnished to ~~enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is~~ such counsel such documents as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe they request for the ~~Shares arising under the Maryland General Corporation Law or the charter or bylaws~~ purpose of ~~the Company. (v) The specimen stock certificate used~~ enabling them to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as pass upon such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreementmatters. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The Company shall have furnished or caused to be furnished to ~~the Manager~~such Managers, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the President or Chief ~~Executive~~ Financial Officer ~~or the President and the principal financial or accounting officer of the Company, on behalf~~ of the Company, dated as of such date, to the effect that the ~~signers~~ signer of such certificate have carefully examined the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (iii) since the date of the most recent financial statements included in the Disclosure Package, there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus. (e) The Company shall have requested and caused the Accountants to have furnished to such Managers, on every date specified in Section 4(n) hereof and to the extent requested by such Managers in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Managers), dated as of such date, in form and substance satisfactory to such Managers, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Prospectus and the Disclosure Package. (f) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of such Managers, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto). (g) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b). (h) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (i) The Shares shall have been listed and admitted and authorized for trading on Nasdaq, and satisfactory evidence of such actions shall have been provided to such Managers, to the extent this Agreement and the transactions contemplated hereunder require the filing of a Listing of Additional Shares Notification form with Nasdaq. (j) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to such Managers such further information, certificates and documents as such Managers may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Managers and counsel for the Managers, this Agreement and all obligations of the applicable Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by such Manager with respect to itself only. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. Following any such cancellation by a Manager, this Agreement shall remain in effect as to the other Manager that has not exercised its right to cancel this Agreement pursuant to this Section 6 and any obligations and rights of the Managers under this Agreement shall be satisfied by or afforded to only such other Manager. The documents required to be delivered by this Section 6 shall be delivered at the office of Milbank LLP, counsel for the Managers, at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, New York, New York 10001 on each such date as provided in this Agreement.

Appears in 1 contract

Sources: Equity Distribution Agreement (United Airlines, Inc.)

Conditions to the Obligations of the Manager. The obligations of the ~~Manager~~ Managers under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company and the Operating Partnership contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company and the Operating Partnership of ~~its~~ their respective obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement, if any, shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(cc) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The Company shall have requested and caused the Company Counsel to furnish to the ~~Manager~~Managers, on ~~every date specified in Section 4(l) of this Agreement~~each Representation Date, its opinion, dated as of such date and addressed to the ~~Manager~~Managers, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described substantially in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken form attached hereto as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date.Exhibit A. (c) The Company shall have requested and caused ~~Maryland Counsel~~ Local Counsel, to furnish to the ~~Manager~~Managers, on ~~every date specified in Section 4(m) of this Agreement~~each Representation Date, its opinion, dated as of such date and addressed to the ~~Manager~~Managers, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described substantially in the ~~Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is~~ form attached hereto as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreement.Exhibit B. (d) The Company shall have requested and caused Tax ~~Counsel~~ Counsel, to furnish to the ~~Manager~~Managers, on ~~every date specified in Section 4(n) of this Agreement~~each Representation Date, its opinion, dated as of such date and addressed to the ~~Manager~~Managers, ~~and~~ substantially in the form attached hereto as ~~set forth on~~ Exhibit A.C. (e) The Company shall have requested and caused Maryland Counsel, to furnish to the Managers, on each Representation Date, its opinion, dated as of such date and addressed to the Managers, substantially in the form attached hereto as Exhibit D. (f) The Managers shall have received from ▇▇▇▇▇▇▇ Procter llp, counsel for the Managers, on each Representation Date, such opinion or opinions, dated as of such date and addressed to the Managers, with respect to the issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (together with any supplement thereto) and other related matters as the Managers may reasonably require, and the Company shall have furnished to such counsel such documents as they may reasonably request for the purpose of enabling them to pass upon such matters. (g) The Company shall have furnished or caused to be furnished to the Manager, on ~~every date specified in Section 4(k) of this Agreement~~each Representation Date, a certificate of the Company, signed by the ~~Chief Executive Officer~~ Chairman of the Board or the President and the principal financial or accounting officer ~~of the Company, on behalf~~ of the Company, dated as of such date, to the effect that the signers of such certificate have carefully examined the ~~Registra~~Registration Statement and the Disclosure Package and any supplements or amendments thereto and this Agreement and that: (i) the representations and warranties of the Company and the Operating Partnership in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Company and the Operating Partnership have complied with all the agreements and satisfied all the conditions on their part to be performed or satisfied at or prior to such date; (ii) the Registration Statement has become effective under the Act and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s or Operating Partnership’s knowledge, threatened; and (iii) since the date of the most recent financial statements included in the Disclosure Package, there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package. (h) The Company shall have requested and caused the Accountants to have furnished to the Managers, on every date specified in Section 4(q) hereof and to the extent requested by the Managers in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Managers), dated as of such date, in form and substance satisfactory to the Managers, which letters shall cover, without limitation, the various financial statements and disclosures contained or incorporated by reference in the Registration Statement and the Disclosure Package and other matters ordinarily covered by accountants’ “comfort letters” to underwriters in connection with registered public offerings as contemplated in the Statement on Auditing Standards No. 72 (AU 634), as well as confirming that they have performed a review of any unaudited interim financial information of the Company included or incorporated by reference in the Registration Statement and the Disclosure Package in accordance with Statement on Auditing Standards ▇▇. ▇▇▇ (▇▇ ▇▇▇▇). References to the Prospectus in this paragraph (h) include any supplement thereto at the date of the letter. (i) Since the respective dates as of which information is disclosed in the Registration Statement and the Disclosure Package, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (h) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of a Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof) and the Disclosure Package (exclusive of any amendment or supplement to the Prospectus). (j) Between the Execution Time and the time of any sale of the Shares through a Manager, there shall not have been any decrease in the rating of any of the Company’s or the Operating Partnership’s debt securities by any “nationally recognized statistical rating organization” (as defined for purposes of Rule 436(g) under the Act) or any notice given of any intended or potential decrease in any such rating or of a possible change in any such rating that does not indicate the direction of the possible change. (k) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (l) The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Managers. (m) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Managers such further information, certificates and documents as a Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to a Manager and counsel for such Manager, this Agreement and all obligations of such Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by such Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇▇▇ Chance US LLP, counsel for the Company, at ▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇, ▇▇▇▇▇, on each such date as provided in this Agreement.

Appears in 1 contract

Sources: Equity Distribution Agreement (Cogdell Spencer Inc.)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; any ~~other~~ material required to be filed by the Company pursuant to Rule 433(d) ~~under~~ of the ~~Act,~~ Act shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The Company shall have requested and caused the Company Counsel to NY18476975v4 furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: ~~1. Based solely on certificates of public officials,~~ (i) ~~each of the~~ The Company has been duly organized and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a ~~corporation,~~ corporation in good standing under the laws of the State of ~~Delaware, with~~ Ohio. (ii) The Company has all requisite corporate power and authority to ~~own or lease~~own, ~~as the case may be,~~ lease and operate its properties and to conduct its business as described in the Disclosure Package and the ~~Prospectus,~~ Prospectus and to enter into and perform its obligations under this Agreement and any applicable Terms Agreement. (iii) The Company is duly qualified to transact business and is in good standing in each jurisdiction in which it owns real property except where the failure to qualify and be ~~so qualified and~~ in good standing would not ~~reasonably be expected to~~ have a material adverse effect on the ~~business~~condition, financial ~~condition~~or otherwise, ~~results of operations~~or on the earnings, ~~management, properties~~ business affairs or business prospects of the Company and its ~~Subsidiaries~~subsidiaries considered as one enterprise. (iv) If the Company has one or more significant subsidiaries, ~~taken~~ as defined in Rule 405 of the Act (each, a “Significant Subsidiary”), each Significant Subsidiary has been duly incorporated or formed and is validly existing as a ~~whole. 3. The issued~~ corporation, partnership, limited liability company or real estate investment trust in good standing or in full force and ~~outstanding shares of capital stock or other ownership interests of each Subsidiary formed~~ effect, as the case may be, under the laws of the ~~State~~ jurisdiction of ~~Delaware~~ its incorporation or formation, has corporate, partnership, limited liability company or real estate investment trust power and authority to own, lease and operate its properties and to conduct its business, and is duly qualified as a foreign corporation, partnership, limited liability company or real estate investment trust to transact business and is in good standing or full force and effect, as the case may be, in each jurisdiction in which it owns real property, except where the failure to so qualify or be in good standing or full force and effect would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise. (v) The number of issued and outstanding capital shares of the Company is as set forth in the Disclosure Package and the Prospectus under “Capitalization,” and the outstanding capital shares of the Company have been duly authorized, validly issued, and are fully paid and non-assessable. The capital shares of the Company conform to the description thereof contained in the Disclosure Package and the Prospectus. All of the issued and outstanding capital stock of the Company's Significant Subsidiaries have been duly authorized and validly ~~issued and~~ issued, are fully paid and non-assessable and, to the best of such counsel's knowledge, except as ~~otherwise set forth~~ disclosed in the Disclosure Package and the Prospectus, are owned by the Company ~~either directly or through wholly-owned subsidiaries~~ free and clear of any security interest, ~~claim,~~ mortgage, pledge, lien, ~~encumbrance~~ encumbrance, claim or equity, except for such security interests, mortgages, pledges, liens, encumbrances, claims or equities that would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise. (vi) Each of this Agreement and any applicable Terms Agreement has been duly authorized, executed and delivered by the Company. (vii) The Shares have been duly and validly authorized by all necessary corporate action and such Shares have been duly authorized for issuance and sale pursuant to this Agreement and any applicable Terms Agreement or any of the Alternative Distribution Agreements and any applicable terms agreement thereunder, as the case may be. Such Shares, when issued and delivered pursuant to this Agreement and any applicable Terms Agreement against payment of the consideration therefor, will be validly issued, fully paid and non-assessable. (viii) The issuance of the Shares will not be subject to any preemptive or other ~~restriction~~ similar rights of any ~~kind, and are subject to no preemptive rights~~ shareholder of the Company arising by operation of law or ~~options arising~~ under the ~~Delaware General Corporation Law~~ charter or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, by-laws of the ~~part of Registration Statement relating~~ Company or, to the ~~Shares for purposes~~ best of ~~the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares~~their knowledge, ~~the Disclosure Package~~ otherwise; and, except as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference set forth in the Disclosure Package and the Prospectus, as no options, warrants or other rights to purchase, agreements or other obligations to issue, or rights to convert any obligations into or exchange any securities for, capital shares of ~~its respective filing~~ or ~~effective date, appeared on its face to be appropriately responsive~~ ownership interests in the Company are outstanding. (ix) The Shares conform in all material respects to the ~~applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy~~ statements ~~under Regulation 14A, as~~ relating thereto contained in the ~~case may be, under the Exchange Act~~ Disclosure Package and the ~~rules~~ Prospectus; and ~~regulations of~~ the ~~Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or~~ certificates for the ~~financial statements, schedules or other financial data included in, or omitted from, such documents~~Shares are in valid and sufficient form. ~~6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency~~ (x) The Registration Statement is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made effective under the Act ~~(except with respect~~ and, to ~~any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with~~ the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any best of their ~~respective properties or assets may be bound or affected and which have been filed as exhibits to~~ knowledge, no stop order suspending the effectiveness of the Registration Statement ~~or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon~~ has been issued under the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations Act or proceedings ~~pending,~~ therefor initiated or threatened ~~or contemplated to which~~ by the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9Commission. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any Any required filing of the Base Prospectus and the Prospectus, and any supplements thereto, pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b)~~; and, based solely on a review of the list of stop orders on the Commission’s website~~ . (~~▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇~~xi) ~~on the date hereof, no stop order suspending the effectiveness of the~~ The Registration Statement and ~~no order directed at any document~~ the Prospectus (other than the documents incorporated by reference therein and the financial statements, related notes and schedules and other financial data and statistical data derived from the financial statements included or incorporated by reference in the Registration Statement or the Prospectus or ~~any amendment~~ omitted therefrom, as to which no opinion need be rendered) as of their respective effective or ~~supplement thereto~~issue dates, ~~has been issued, nor has any proceeding~~ complied as to form in all material respects with the requirements for registration statements on Form S-3 under the ~~purpose been instituted or threatened by~~ Act and the ~~Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance~~rules thereunder. (iixii) ~~In rendering such opinion~~Each document filed pursuant to the Exchange Act (other than the financial statements, ~~such counsel may state that its~~ related schedules and other financial data and statistical data derived from the financial statements included or incorporated by reference therein, as to which no opinion ~~is limited~~ need be rendered) and incorporated or deemed to ~~matters governed~~ be incorporated by reference in the ~~federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California~~ Disclosure Package and the ~~Delaware General Corporation Law. Such counsel shall also have furnished~~ Prospectus complied when so filed as to form in all material respects with the ~~Manager~~Exchange Act. (xiii) To the best of their knowledge, ~~on every date specified~~ there are no legal or governmental proceedings pending or threatened which are required to be disclosed in ~~Section 4(l) of this Agreement~~the Prospectus, ~~a written statement~~other than those disclosed therein, ~~addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager~~and, to the ~~effect~~ best of their knowledge, all pending legal or governmental proceedings to which the Company or its Significant Subsidiaries is a party or of which any of the property of the Company or its subsidiaries is the subject that ~~(x) such counsel has acted as counsel~~ are not described in the Registration Statement, including ordinary routine litigation incidental to the business, are, considered in the aggregate, not material to the business of the Company and its subsidiaries considered as one enterprise. (xiv) To the best of their knowledge, there are no contracts, indentures, mortgages, loan agreements, notes, leases or other instruments required to be described or referred to in the Registration Statement or to be filed as exhibits thereto other than those described or referred to therein or filed as exhibits thereto, and the descriptions thereof or references thereto are correct in all material respects. (xv) No authorization, approval or consent of any court or governmental authority or agency is required that has not been obtained in connection with the ~~preparation~~ consummation by the Company of the transactions contemplated by this Agreement or any applicable Terms Agreement, except such as may be required under the Act, the Exchange Act, and state securities laws or blue sky laws or real estate syndication laws; and to the best of their knowledge, the execution and delivery of this Agreement and any applicable Terms Agreement and the consummation of the transactions contemplated herein and therein and compliance by the Company with its obligations hereunder and thereunder will not (A) constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any Significant Subsidiary pursuant to, any contract, indenture, mortgage, loan agreement, note, lease or other instrument that is filed or incorporated by reference as an exhibit to the Registration Statement to which the Company or any Significant Subsidiary is a party or by which they are bound or to which any of the property or assets of the Company or any Significant Subsidiary is subject, except (i) where such breach, default, creation or imposition would not have a material adverse effect on the condition, financial or otherwise, or on the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise and (ii) that such counsel expresses no opinion with respect to compliance with financial covenants or tests, or (B) result in a violation of the provisions of any administrative or court order or decree to which the Company or any of its subsidiaries is subject and which is known to such counsel, the charter or by-laws or other organizational document of the Company or any Significant Subsidiary or any applicable law or administrative regulation. (xvi) Neither the Company nor any Significant Subsidiary is, or will be immediately after the consummation of the transactions contemplated by this Agreement and any applicable Terms Agreement, required to be registered under the Investment Company Act. (xvii) The information in the Disclosure Package, the Prospectus and the Prospectus Supplement under the captions “Description of Common Shares,” “Certain Anti-Takeover Provisions,” “Certain Federal Income Tax Considerations” and “Supplemental United States Federal Income Tax Considerations,” to the extent that it constitutes matters of law or legal conclusions, has been reviewed by them and is correct in all material respects. (xviii) The Company has qualified as a REIT for each of its taxable years ended December 31, 1993 through 2011 and the Company is organized in conformity with the requirements for qualification as a REIT, and the Company's current and proposed method of operation will enable it to continue to meet the requirements for qualification and taxation as a REIT under the Code for its taxable year ending December 31, 2012 and for future taxable years. (xix) No holders of securities of the Company have rights to the registration of such securities under the Registration Statement. In addition, such counsel shall state that they have examined various documents and records and participated in conferences with officers and other representatives of the Company, representatives of the Accountants and with representatives of the Manager at which the contents of the Registration Statement, the Disclosure Package and the ~~Prospectus~~ Prospectus, and ~~has reviewed~~ any supplements or amendments thereto, and related matters were discussed and, although such counsel is not passing upon and does not assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package or the Prospectus, including the documents incorporated by reference therein (other than as specified above), and ~~(y) subject to the foregoing, such counsel confirms that~~any supplements or amendments thereto, on the basis of the ~~information gained in the course of performing the services referred to therein~~foregoing, ~~nothing~~ no facts came to ~~such counsel’s~~ their attention that ~~leads such counsel~~ caused them to believe that (i) the Registration ~~Statement~~Statement or any amendments thereto, on as of the most recent deemed effective ~~date,~~ date pursuant to Rule 430B(f)(2) ~~under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11~~ of the Act ~~in connection with~~ prior to the ~~sale~~ delivery of ~~the Shares~~such opinion, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the ~~Prospectus~~Disclosure Package, as ~~of its date, and as of~~ amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained ~~or contains any~~ an untrue statement of a material fact or omitted ~~or omits~~ to state ~~any~~ a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the ~~Disclosure Package~~Prospectus, as ~~amended~~ of its date or ~~supplemented~~ at the ~~Execution Time or at any applicable date related to the delivery of such opinion~~relevant Representation Date, contained ~~any~~ an untrue statement of a material fact or omitted 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; provided~~misleading (in each case, ~~however, such counsel is not passing upon and does not (a) assume any responsibility for~~ other than the ~~accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package~~ Form T-1 and the ~~Prospectus (except as~~ financial statements, related notes and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial data and statistical data derived from the financial statements included or incorporated by reference ~~in,~~ therein or omitted ~~from~~therefrom, ~~the Registration Statement, the Disclosure Package or the Prospectus~~as to which such counsel need express no statement). References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement ~~Date~~Date or Time of Delivery, as applicable. With respect to statements contained in the Disclosure Package, any statement contained in any of the constituent documents shall be deemed to be modified or superseded to the extent that any information contained in subsequent constituent documents modifies or replaces such statement. (c) The ~~Company~~ Manager shall have ~~requested and caused Maryland Counsel to furnish to~~ received from Sidley Austin LLP, counsel for the Manager, on every date specified in Section 4(m) of this Agreement, ~~its opinion~~such opinion or opinions, dated as of such date and addressed to the Manager, with respect to the ~~effect that:~~ issuance and sale of the Shares, the Registration Statement, the Disclosure Package, the Prospectus (itogether with any supplement thereto) ~~The~~ and other related matters as the Manager may reasonably require, and the Company ~~has been duly incorporated and is validly existing~~ shall have furnished to such counsel such documents as ~~a corporation in good standing under~~ they request for the purpose of enabling them to pass upon such matters. In giving their opinions, Sidley Austin LLP may rely as to matters involving the laws of the State of ~~Maryland. (ii) The~~ Ohio upon the opinion of Company ~~has the corporate power~~ Counsel, and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms Counsel may rely as to ~~legal~~ matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to involving the laws of the State of ~~Maryland~~New York upon the opinion of Sidley Austin LLP. Company Counsel and Sidley Austin LLP may rely (i) as to the qualification of the Company or its subsidiaries to do business in any state or jurisdiction, ~~and Maryland Counsel need express no opinion with respect to any federal~~ upon certificates of appropriate government officials, telephonic confirmation by representatives of such states or ~~state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii)~~ confirmation from information contained on the websites of such states and (ixii) ~~above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws~~ as to ~~which Maryland Counsel need express no opinion)~~matters of fact, ~~if any,~~ upon certificates and ~~those approvals, authorizations, consents, orders~~ written statements of officers and employees of and accountants for the Company or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreementits subsidiaries. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, its opinion, dated as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the ~~Chief Executive Officer~~ Chairman of the Board or the President and the principal financial or accounting officer ~~of the Company, on behalf~~ of the Company, dated as of such date, to the effect that the signers of such certificate have carefully examined the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the sa

Appears in 1 contract

Sources: Equity Distribution Agreement (Associated Estates Realty Corp)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the ~~Company~~ Partnership Parties contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the ~~Company~~ Partnership Parties of ~~its~~ their obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Units; any ~~other~~ material required to be filed by the ~~Company~~ Partnership pursuant to Rule 433(d) under the Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The ~~Company~~ Partnership shall have requested and caused ~~the Company~~ Partnership Counsel to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: 1(i) The Partnership is a limited partnership duly formed under the Delaware LP Act. ~~Based~~ Each of the General Partner and the Operating Company is a limited liability company duly formed under the Delaware LLC Act. Each of Tesoro Pipelines, Tesoro SoCal, THPPLLC and Tesoro Northwest is a limited liability company under the Delaware LLC Act. Each of the Partnership Entities has the entity power and authority necessary to own or license its properties and to conduct its business, and in the case of the General Partner, to act as the general partner of the Partnership, in all material respects as described in the Registration Statement and the Prospectus. With your consent, based solely on certificates of from public officials, ~~(i)~~ we confirm that each of the ~~Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”)~~ Partnership Entities is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware~~, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package~~ . (ii) The Units and the ~~Prospectus, except where the failure~~ limited partner interests represented thereby to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and ~~outstanding shares of capital stock or other ownership interests of each Subsidiary formed under~~ sold by the ~~laws of the State of Delaware~~ Partnership pursuant to this Agreement have been duly authorized by all necessary limited partnership action of the Partnership and, when issued to and paid for by the Manager in accordance with the terms of this Agreement, will be validly issued and ~~are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries~~ free ~~and clear~~ of ~~any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no~~ preemptive rights ~~or options~~ arising ~~under~~ from the ~~Delaware General Corporation Law or under such Subsidiary~~Partnership’s ~~organizational~~ governing documents. 4(iii) The execution, delivery and performance of this Agreement and any applicable Terms Agreement have been duly authorized by all necessary limited liability company or limited partnership, as applicable, action of each of the Partnership Parties and this Agreement and any applicable Terms Agreement have been duly executed and delivered by each of the Partnership Parties. (iv) The execution and delivery of this Agreement and the issuance and sale of the Units by the Partnership to the Manager pursuant to this Agreement, do not on the date hereof (i) violate the Partnership Parties governing documents; or (ii) result in the breach of or a default under any of the agreements filed as exhibits to the Registration Statement; or (iii) violate any federal, Texas or New York statute, rule or regulation applicable to the Partnership Parties or the Delaware LLC Act or the Delaware LP Act; or (iv) require any consents, approvals, or authorizations to be obtained by the Partnership Entities from, or any registrations, declarations or filings to be made by the Partnership Entities with, any governmental authority under any federal, Texas or New York statute, rule or regulation applicable to the Partnership Entities or the Delaware LLC Act or the Delaware LP Act that have not been obtained or made. (v) The Registration Statement has become effective under the Act. To such counsel’s knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued under the Act and no proceedings therefor have been initiated by the Commission. Any required filing of the Base Prospectus and the Prospectus has been filed in accordance with Rule 424(b) under the Act. (vi) The Registration Statement, on ~~the date it initially became effective under the Act and on the~~ its initial effective date, including the information deemed to be a part thereof pursuant to Rule ~~430B(f)(2)~~ 430B under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its ~~respective filing or effective~~ date, each appeared on its face to be appropriately responsive in all material respects to the applicable form requirements for ~~reports~~ registration statements on Form ~~10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be,~~ S-3 under the ~~Exchange~~ Act and the rules and regulations of the Commission thereunder; it being ~~understood~~ understood, however, that such counsel expresses no ~~opinion need be rendered~~ view with respect to Regulation S-T or the financial statements, ~~schedules~~ schedules, or other financial ~~data~~ or accounting data, included in, incorporated by reference in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or ~~incorporated by reference therein~~the Prospectus. For purposes of this paragraph, ~~(ii) any federal, California, Delaware or New York State law, rule or regulation binding upon~~ such counsel assumed that the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described statements made in the Registration ~~Statement~~Statement and the Prospectus are accurate, correct and complete. (vii) The statements in the Prospectus under the headings “Summary—The Offering,” “Description of our Cash Distribution Policy,” “Description of Our Common Units” and “The Partnership Agreement,” insofar as they purport to constitute a summary of the terms of the Common Units, Subordinated Units and the Incentive Distribution Rights are accurate descriptions or summaries in all material respects. (viii) The statements included in the Registration Statement and the Prospectus under the headings “Summary—The Offering,” “Description of our Cash Distribution Policy,” “The Partnership Agreement,” “Description of Our Common Units,” and “Investment in Tesoro Logistics LP by Employee Benefit Plans” insofar as they purport to constitute summaries of the terms of statutes, rules or regulations, legal and governmental proceedings or contracts and other documents, constitute accurate descriptions or summaries in all material respects. (ix) None of the Partnership, the ~~Prospectus or~~ General Partner and the ~~Disclosure Package but are not so described. 9. The~~ Operating Company ~~is not~~is, ~~and~~ nor immediately after giving effect to the ~~issuance~~ sale of the ~~Shares~~ Units and the application of the proceeds as described in the Prospectus, will ~~not~~ any of them be required to be, registered as an “investment company,” ~~as that term is defined in~~ within the meaning of the Investment Company Act of 1940, as amended. ~~10.~~ (x) The ~~Registration Statement became effective~~ General Partner is the record holder of an approximate 2% general partner interest in the Partnership; such general partner interest has been duly authorized and validly issued in accordance with the Partnership Agreement; and the General Partner is the record holder of such general partner interest free and clear of all Liens (i) in respect of which a financing statement under the ~~Act; any required filing~~ Uniform Commercial Code of the ~~Prospectus pursuant to Rule 424(b) has been made~~ State of Delaware naming the General Partner as debtor is on file as of a recent date in the ~~manner and within the time period required by Rule 424(b); and, based solely on a review~~ office of the ~~list~~ Secretary of ~~stop orders~~ State of the State of Delaware or (ii) otherwise known to us without independent investigation, other than (a) those created by or arising under the Delaware LP Act or the Partnership Agreement and (b) restrictions on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of transferability or other Liens described in the Registration Statement and ~~no order directed at any document incorporated by reference in~~ the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuanceProspectus. (iixi) ~~In rendering such opinion, such counsel may state that its opinion~~ The Partnership is ~~limited to matters governed by~~ the ~~federal laws~~ record holder of all of the ~~United States of America, the internal laws~~ issued and outstanding limited liability company interests of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of Operating Company; such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the limited liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The Company shall have requested and caused Maryland Counsel to furnish to the Manager, on every date specified in Section 4(m) of this Agreement, its opinion, dated as of such date and addressed to the Manager, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares company interests have been duly authorized by all necessary ~~corporate~~ limited liability company action ~~on the part~~ of the Operating Company, such limited liability company interests have been validly issued in accordance with the Operating Company LLC Agreement; under the Delaware LLC Act, the Partnership will have no obligation to make further payments for its ~~charter~~ ownership of such limited liability company interests or contributions to the Operating Company solely by reason of its ownership of such limited liability company interests (other than as provided in Section 18-607 of the Delaware LLC Act) or its status as the sole member of the Operating Company and ~~bylaws~~ no personal liability for the debts, obligations and liabilities of the Operating Company, whether arising in contract, tort or otherwise, solely by reason of being the sole member of the Operating Company; and the ~~Maryland General Corporation Law,~~ Partnership is the record holder of such limited liability company interests free and ~~when Shares are issued, delivered and paid for as contemplated by~~ clear of all Liens (i) in respect of which a financing statement under the ~~Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock~~ Uniform Commercial Code of the ~~Company are not entitled~~ State of Delaware naming the Partnership as debtor is on file as of a recent date in the office of the Secretary of State of the State of Delaware or (ii) otherwise known to ~~preemptive~~ us without independent investigation, other than (a) those created by or ~~other rights to subscribe for the Shares~~ arising under the ~~Maryland General Corporation Law~~ Delaware LLC Act, the Operating Company LLC Agreement or the ~~charter~~ Credit Agreement and (b) restrictions on transferability or ~~bylaws of~~ other Liens described in the ~~Company~~Prospectus. (vxii) The ~~specimen stock certificate used to evidence~~ Operating Company is the ~~Shares complies with the applicable requirements~~ record holder of all of the ~~Maryland General Corporation Law~~ issued and ~~with any applicable requirements~~ outstanding limited liability company interests of ~~the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement~~ Tesoro Pipelines; such limited liability company interests have been duly authorized by all necessary ~~corporate~~ limited liability company action on of Tesoro Pipelines, and such limited liability company interests have been validly issued in accordance with the ~~part~~ Tesoro Pipelines LLC Agreement; under the Delaware LLC Act, the Operating Company will have no obligation to make further payments for its ownership of such limited liability company interests or contributions to Tesoro Pipelines solely by reason of its ownership of such limited liability company interests (other than as provided in Section 18-607 of the ~~Company under~~ Delaware LLC Act) or its ~~charter~~ status as the sole member of Tesoro Pipelines and ~~bylaws~~ no personal liability for the debts, obligations and liabilities of Tesoro Pipelines, whether arising in contract, tort or otherwise, solely by reason of being the sole member of Tesoro Pipelines; and the ~~Maryland General Corporation Law. This Agreement has been duly executed~~ Operating Company is the record holder of such limited liability company interests free and ~~delivered by~~ clear of all Liens (i) in respect of which a financing statement under the ~~Company.~~ Uniform Commercial Code of the State of Delaware naming the Operating Company as debtor is on file as of a recent date in the office of the Secretary of State of the State of Delaware or (~~vii~~ii) ~~The statements included in~~ otherwise known to us without independent investigation, other than (a) ~~the Disclosure Package and the Prospectus~~ those created by or arising under the ~~captions “General Description of~~ Delaware LLC Act, the ~~Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by~~ Tesoro Pipelines LLC Agreement or the ~~information in Item 5.03 of the Form 8-K,~~ Credit Agreement and (b) ~~Item 15 “Indemnification of Officers and Directors”~~ restrictions on transferability or other Liens described in ~~Part II of~~ the ~~Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects~~Prospectus. (~~viii~~xiii) ~~No approval~~The Operating Company is the record holder of all of the issued and outstanding limited liability company interests of Tesoro SoCal; such limited liability company interests have been duly authorized by all necessary limited liability company action of Tesoro SoCal, ~~authorization~~and such limited liability company interests have been validly issued in accordance with the Tesoro SoCal LLC Agreement; under the Delaware LLC Act, ~~consent~~ the Operating Company will have no obligation to make further payments for its ownership of such limited liability company interests or ~~order~~ contributions to Tesoro SoCal solely by reason of its ownership of such limited liability company interests (other than as provided in Section 18-607 of the Delaware LLC Act) or ~~filing with any governmental authority~~ its status as the sole member of Tesoro SoCal and no personal liability for the debts, obligations and liabilities of Tesoro SoCal, whether arising in contract, tort or otherwise, solely by reason of being the sole member of Tesoro SoCal; and the Operating Company is the record holder of such limited liability company interests free and clear of all Liens (i) in respect of which a financing statement under the Uniform Commercial Code of the State of ~~Maryland pursuant to any law~~ Delaware naming the Operating Company as debtor is on file as of a recent date in the office of the Secretary of State of the State of ~~Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement~~Delaware or (ii) otherwise known to us without independent investigation, other than ~~such as have been obtained~~ (a) those created by or ~~made~~arising under the Delaware LLC Act, as the ~~case may be~~Tesoro SoCal LLC Agreement or the Credit Agreement and (b) restrictions on transferability or other Liens described in the Prospectus. (ixxiv) ~~The execution, delivery and performance~~ Tesoro Pipelines is the record holder of ~~this Agreement by the Company and the issuance, sale and delivery~~ all of the ~~Shares does not~~ issued and outstanding limited liability company interests of THPPLLC; such limited liability company interests have been duly authorized by all necessary limited liability company action of THPPLLC, and such limited liability company interests have been validly issued in accordance with the THPPLLC LLC Agreement; under the Delaware LLC Act, Tesoro Pipelines will ~~not result~~ have no obligation to make further payments for its ownership of such limited liability company interests or contributions to THPPLLC solely by reason of its ownership of such limited liability company interests (other than as provided in ~~any breach~~ Section 18-607 of the Delaware LLC Act) or ~~constitute a default under (nor constitute any event which with notice~~its status as the sole member of THPPLLC and no personal liability for the debts, ~~lapse~~ obligations and liabilities of ~~time~~ THPPLLC, whether arising in contract, tort or ~~both would result in any breach~~ otherwise, solely by reason of ~~or constitute a default under):~~ being the sole member of THPPLLC; and Tesoro Pipelines is the record holder of such limited liability company interests free and clear of all Liens, (i) in respect of which a financing statement under the ~~charter or bylaws of the Company, (ii) any laws, rules or regulations~~ Uniform Commercial Code of the State of ~~Maryland or (iii) to~~ Delaware naming Tesoro Pipelines as debtor is on file as of a recent date in the ~~knowledge~~ office of ~~such counsel, any decree, judgment or order~~ the Secretary of ~~any court or governmental authority~~ State of the State of ~~Maryland applicable~~ Delaware or (ii) otherwise known to us without independent investigation, other than (a) those created by ~~name to~~ or arising under the ~~Company~~Delaware LLC Act, the THPPLLC LLC Agreement or the Credit Agreement and (b) restrictions on transferability or other Liens described in the Prospectus. (xxv) ~~The opinions~~ Tesoro Pipelines is the record holder of ~~Maryland Counsel may be~~ all of the issued and outstanding limited liability company interests of Tesoro Northwest; such limited liability company interests have been duly authorized by all necessary limited liability company action of Tesoro Northwest, such limited liability company interests have been validly issued in accordance with the Tesoro Northwest LLC Agreement; under the Delaware LLC Act, Tesoro Pipelines will have no obligation to make further payments for its ownership of such limited liability company interests or contributions to Tesoro Northwest solely by reason of its ownership of such limited liability company interests (other than as provided in Section 18-607 of the ~~laws~~ Delaware LLC Act) or its status as the sole member of Tesoro Northwest and no personal liability for the debts, obligations and liabilities of Tesoro Northwest, whether arising in contract, tort or otherwise, solely by reason of being the sole member of Tesoro Northwest; and Tesoro Pipelines is the record holder of such limited liability company interests free and clear of all Liens (i) in respect of which a financing statement under the Uniform Commercial Code of the State of ~~Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions~~ Delaware naming Tesoro Pipelines as debtor is on file as of a recent date in ~~clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration~~ the office of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings Secretary of ~~or with any governmental authority~~ State of the State of ~~Maryland~~ Delaware or (ii) otherwise known to us without independent investigation, other than (a) those created by or arising under the Delaware LLC Act, the Tesoro Northwest LLC Agreement or the Credit Agreement and (b) restrictions on transferability or other Liens described in the Prospectus. (xvi) The General Partner is the record holder of 100% of the IDRs; the IDRs and the limited partner interests represented thereby have been duly authorized by all necessary limited partner action of the Partnership; under the Delaware LP Act, the General Partner will have no obligation to make further payments for its ownership of the IDRs or contributions to the Partnership solely by reason of its ownership of the IDRs or its status as a limited partner of the Partnership (other than ~~those required~~ as provided in Sections 17-303 and 17-607 of the Delaware LP Act) and no personal liability for the debts, obligations and liabilities of the Partnership, whether arising in contract, tort or otherwise, solely by reason of being a limited partner of the Partnership; and the General Partner is the record holder of the IDRs, free and clear of all Liens, (i) in respect of which a financing statement under ~~securities laws and tax laws~~ the Uniform Commercial Code of the State of ~~Maryland~~ Delaware naming the General Partner as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreement. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, debtor is on ~~every date specified in Section 4(n) of this Agreement, its opinion, dated~~ file as of such date and addressed to the Manager, and in form as set forth on Exhibit A. (e) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the Chief Executive Officer or the President and the principal financial or accounting officer of the Company, on behalf of the Company, dated as of such date, to the effect that the signers of such certificate have examined the Registrarece

Appears in 1 contract

Sources: Equity Distribution Agreement (Tesoro Logistics Lp)

Conditions to the Obligations of the Manager. The obligations of the Manager under this Agreement and any Terms Agreement shall be subject to (i) the accuracy of the representations and warranties on the part of the Company contained herein as of the Execution Time, each Representation Date, and as of each Applicable Time, Settlement Date and Time of Delivery, (ii) to the performance by the Company of its obligations hereunder and (iii) the following additional conditions: (a) The Prospectus, and any supplement thereto, required by Rule 424 to be filed with the Commission have been filed in the manner and within the time period required by Rule 424(b)) with respect to any sale of Shares; each Interim Prospectus Supplement, as applicable, shall have been filed in the manner required by Rule 424(b) within the time period required by Section 4(x) of this Agreement; any other material required to be filed by the Company pursuant to Rule 433(d) under the Securities Act, shall have been filed with the Commission within the applicable time periods prescribed for such filings by Rule 433; and no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use shall have been issued and no proceedings for that purpose shall have been instituted or threatened. (ib) The Company shall have requested and caused the Company Counsel to furnish to the Manager, on every date specified in Section 4(l) of this Agreement, ~~its opinion,~~ their opinions and negative assurance letter dated as of such date and addressed to the Manager, to the effect that: 1. Based solely on certificates of public officials, (i) each of the Company and each subsidiary listed on Schedule A attached to such opinion (the “Listed Subsidiaries”) is duly qualified to do business as a foreign corporation, limited liability company or limited partnership, as the case may be, and is in good standing in each jurisdiction set forth opposite such entity’s name under the column heading “State(s) of Foreign Qualification” on such Schedule A and (ii) Texas-LTC Limited Partnership is in good standing in Texas. 2. Each Listed Subsidiary formed under the laws of the State of Delaware is validly existing as a corporation, in good standing under the laws of the State of Delaware, with corporate power and authority to own or lease, as the case may be, its properties and conduct its business as described in the Disclosure Package and the Prospectus, except where the failure to be so qualified and in good standing would not reasonably be expected to have a material adverse effect on the business, financial condition, results of operations, management, properties or prospects of the Company and its Subsidiaries, taken as a whole. 3. The issued and outstanding shares of capital stock or other ownership interests of each Subsidiary formed under the laws of the State of Delaware have been duly authorized and validly issued and are fully paid and non-assessable and, except as otherwise set forth in the Disclosure Package and the Prospectus, are owned by the Company either directly or through wholly-owned subsidiaries free and clear of any security interest, claim, mortgage, pledge, lien, encumbrance or other restriction of any kind, and are subject to no preemptive rights or options arising under the Delaware General Corporation Law or under such Subsidiary’s organizational documents. 4. The Registration Statement, on the date it initially became effective under the Act and on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, the Disclosure Package as of the Execution Time, the Prospectus as of its date and as of the date hereof (in each case, excluding documents incorporated or deemed to be incorporated by reference and except for the financial statements, schedules or other financial and statistical data contained therein or excluded therefrom, as to which no opinion need be rendered), and any Issuer Free Writing Prospectuses, appear on their face to be appropriately responsive in all material respects to the requirements of the Act or the Exchange Act, as applicable. 5. Each of the documents incorporated or deemed to be incorporated by reference in the Disclosure Package and the Prospectus, as of its respective filing or effective date, appeared on its face to be appropriately responsive in all material respects to the applicable requirements for reports on Form 10-K, 10-Q and 8-K, and proxy statements under Regulation 14A, as the case may be, under the Exchange Act and the rules and regulations of the Commission thereunder; it being understood that no opinion need be rendered with respect to Regulation S-T or the financial statements, schedules or other financial data included in, or omitted from, such documents. 6. No approval, authorization, consent or order of or filing with any federal, California, Delaware or New York State regulatory commission, board, court, body, authority or agency is required in connection with the issuance and sale of Shares by the Company and consummation by the Company of the transactions contemplated by this Agreement other than such as have been obtained or made under the Act (except with respect to any qualification under state securities, foreign securities or blue sky laws of any jurisdiction in connection with the sale of the Shares or under the rules and regulations of FINRA, as to which no opinion need be rendered). 7. The execution and delivery by the Company of this Agreement and the issuance and sale of the Shares do not and the performance by the Company of its obligations under this Agreement will not result in any breach of or constitute a default under (i) any indenture, mortgage, deed of trust, bank loan or credit agreement or other evidence of indebtedness, or any license, lease, contract or other agreement or instrument to which the Company or any of its Subsidiaries is a party or by which any of them or any of their respective properties or assets may be bound or affected and which have been filed as exhibits to the Registration Statement or incorporated by reference therein, (ii) any federal, California, Delaware or New York State law, rule or regulation binding upon the Company or any of its Subsidiaries or their respective properties or assets, or (iii) to the knowledge of such counsel, any decree, judgment or order applicable to the Company or any of its Subsidiaries. 8. To the knowledge of such counsel, there are no actions, suits, claims, investigations or proceedings pending, threatened or contemplated to which the Company or any of its Subsidiaries or any of their respective directors or officers is a party or to which any of their respective properties is subject at law or in equity before or by any federal, state, local or foreign governmental or regulatory commission, board, body, authority or agency which are required to be described in the Registration Statement, the Prospectus or the Disclosure Package but are not so described. 9. The Company is not, and after giving effect to the issuance of the Shares and the application of the proceeds as described in the Prospectus, will not be, an “investment company,” as that term is defined in the Investment Company Act of 1940, as amended. 10. The Registration Statement became effective under the Act; any required filing of the Prospectus pursuant to Rule 424(b) has been made in the manner and within the time period required by Rule 424(b); and, based solely on a review of the list of stop orders on the Commission’s website (▇▇▇.▇▇▇.▇▇▇/▇▇▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇▇▇.▇▇▇▇▇) on the date hereof, no stop order suspending the effectiveness of the Registration Statement and no order directed at any document incorporated by reference in the Registration Statement or the Prospectus or any amendment or supplement thereto, has been issued, nor has any proceeding for the purpose been instituted or threatened by the Commission. 11. The Shares have been approved for listing by the NYSE subject to official notice of issuance. (ii) In rendering such opinion, such counsel may state that its opinion is limited to matters governed by the federal laws of the United States of America, the internal laws of the State of New York, the internal laws of the State of California and the Delaware General Corporation Law. Such counsel shall also have furnished to the Manager, on every date specified in Section 4(l) of this Agreement, a written statement, addressed to the Manager and dated as of such date, in form and substance satisfactory to the Manager, to the effect that (x) such counsel has acted as counsel to the Company in connection with the preparation of the Registration Statement, the Disclosure Package and the Prospectus and has reviewed the Registration Statement, and (y) subject to the foregoing, such counsel confirms that, on the basis of the information gained in the course of performing the services referred to therein, nothing came to such counsel’s attention that leads such counsel to believe that (i) the Registration Statement, on the effective date, pursuant to Rule 430B(f)(2) under the Act, of the part of the Registration Statement relating to the Shares for purposes of the liability of the Manager under Section 11 of the Act in connection with the sale of the Shares, contained an untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) the Prospectus, as of its date, and as of the date of such opinion, contained or contains any untrue statement of a material fact or omitted or omits to state any material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading; or (iii) the Disclosure Package, as amended or supplemented at the Execution Time or at any applicable date related to the delivery of such opinion, contained any untrue statement of a material fact or omitted to state a material fact necessary in order to make the statements therein, in light of the circumstances under which they were made, not misleading; provided, however, such counsel is not passing upon and does not (a) assume any responsibility for the accuracy, completeness or fairness of the statements contained in the Registration Statement, the Disclosure Package and the Prospectus (except as and to the extent set forth in such opinion and in opinions delivered pursuant to Section 6(d) with respect to certain tax matters) and (b) express any belief with respect to the financial statements and supporting schedules and other financial and statistical data included or incorporated by reference in, or omitted from, the Registration Statement, the Disclosure Package or the Prospectus. References to the Prospectus in this paragraph (b) shall also include any supplements thereto at the Settlement Date. (c) The ~~Company~~ Manager shall have ~~requested and caused Maryland Counsel to furnish to the~~ received from Manager’s Counsel, on every date specified in Section 4(m) of this Agreement, ~~its opinion, dated as of~~ such date and addressed to the Manager, to the effect that: (i) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland. (ii) The Company has the corporate power and authority to own opinion or lease its properties, to conduct its business as described in the Disclosure Package and the Prospectus and to enter into and perform its obligations under this Agreement. (iii) The authorized capital stock of the Company is as set forth in the Disclosure Package and the Prospectus in the third paragraph under the caption “General Description of the Offered Securities” as supplemented by the information in Item 5.03 of the Company’s Current Report on Form 8-K filed with the Commission on June 6, 2016 (the “Form 8-K”). The authorized capital stock of the Company conforms as to legal matters in all material respects to the description thereof contained in the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities” and “Description of Our Common Stock” as supplemented by the information in Item 5.03 of the Form 8-K, as applicable. (iv) The sale and issuance of the Shares have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law, and when Shares are issued, delivered and paid for as contemplated by the Directors’ Resolutions and this Agreement, such Shares will be validly issued, fully paid and non-assessable. The holders of outstanding shares of capital stock of the Company are not entitled to preemptive or other rights to subscribe for the Shares arising under the Maryland General Corporation Law or the charter or bylaws of the Company. (v) The specimen stock certificate used to evidence the Shares complies with the applicable requirements of the Maryland General Corporation Law and with any applicable requirements of the charter or bylaws of the Company. (vi) The execution and delivery of this Agreement have been duly authorized by all necessary corporate action on the part of the Company under its charter and bylaws and the Maryland General Corporation Law. This Agreement has been duly executed and delivered by the Company. (vii) The statements included in (a) the Disclosure Package and the Prospectus under the captions “General Description of the Offered Securities,” “Description of Our Common Stock” and “Certain Provisions of Maryland Law and of Our Charter and Bylaws” as supplemented by the information in Item 5.03 of the Form 8-K, and (b) Item 15 “Indemnification of Officers and Directors” in Part II of the Registration Statement, insofar as such statements summarize matters of Maryland law or the charter or bylaws of the Company, are true and correct in all material respects. (viii) No approval, authorization, consent or order of or filing with any governmental authority of the State of Maryland pursuant to any law of the State of Maryland is required in connection with the issuance and sale of the Shares by the Company and consummation of the transactions contemplated by this Agreement, other than such as have been obtained or made, as the case may be. (ix) The execution, delivery and performance of this Agreement by the Company and the issuance, sale and delivery of the Shares does not and will not result in any breach of or constitute a default under (nor constitute any event which with notice, lapse of time or both would result in any breach of or constitute a default under): (i) the charter or bylaws of the Company, (ii) any laws, rules or regulations of the State of Maryland or (iii) to the knowledge of such counsel, any decree, judgment or order of any court or governmental authority of the State of Maryland applicable by name to the Company. (x) The opinions of Maryland Counsel may be limited to the laws of the State of Maryland, and Maryland Counsel need express no opinion with respect to any federal or state securities laws or federal or state laws relating to fraudulent conveyances. (xi) The opinions in clauses (vii), (viii) and (ix) above may be limited to Maryland Counsel’s consideration of the Maryland General Corporation Law and only those other Maryland laws (other than securities and tax laws as to which Maryland Counsel need express no opinion), if any, and those approvals, authorizations, consents, orders or filings of or with any governmental authority of the State of Maryland (other than those required under securities laws and tax laws of the State of Maryland as to which Maryland Counsel need express no opinion), if any, which in Maryland Counsel’s experience are normally applicable transactions of the type described in this Equity Distribution Agreement. (d) The Company shall have requested and caused Tax Counsel to furnish to the Manager, on every date specified in Section 4(n) of this Agreement, its opinionopinions, dated as of such date and addressed to the Manager, and ~~in form~~ the Company shall have furnished to such counsel such documents as ~~set forth on Exhibit A.~~they request for the purpose of enabling them to pass upon such matters. (ed) The Company shall have furnished or caused to be furnished to the Manager, on every date specified in Section 4(k) of this Agreement, a certificate of the Company, signed by the President or Chief ~~Executive~~ Financial Officer ~~or the President and the principal financial or accounting officer of the Company, on behalf~~ of the Company, dated as of such date, to the effect that the ~~signers~~ signer of such certificate have carefully examined the ~~Registra~~Registration Statement, the Disclosure Package and the Prospectus and any supplements or amendments thereto and this Agreement and that: (i) the representations and warranties of the Company in this Agreement are true and correct on and as of such date with the same effect as if made on such date and the Company has complied with all the agreements and satisfied all the conditions on its part to be performed or satisfied at or prior to such date; (ii) no stop order suspending the effectiveness of the Registration Statement or any notice objecting to its use has been issued and no proceedings for that purpose have been instituted or, to the Company’s knowledge, threatened; and (iii) since the date of the most recent financial statements included in the Disclosure Package, there has been no material adverse effect on the condition (financial or otherwise), prospects, earnings, business or properties of the Company and its subsidiaries, taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package and the Prospectus. (e) The Company shall have requested and caused the Accountants to have furnished to the Manager, on every date specified in Section 4(n) hereof and to the extent requested by the Manager in connection with any offering of the Shares, letters (which may refer to letters previously delivered to the Manager), dated as of such date, in form and substance satisfactory to the Manager, containing statements and information of the type ordinarily included in accountants’ “comfort letters” to underwriters with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Prospectus and the Disclosure Package and, in each case, with a “cut-off date” no more than three days prior to the date of such letter. (f) If applicable, the Company shall have furnished to the Manager, on every date specified in Section 4(o) hereof and to the extent requested by the Manager in connection with any offering of the Shares, a certificate of the Chief Financial Officer of the Company, dated as of such date, in form and substance satisfactory to the Manager, providing “management comfort” with respect to the financial statements and certain financial information included or incorporated by reference in the Registration Statement, the Prospectus and the Disclosure Package. (g) Since the respective dates as of which information is disclosed in the Registration Statement, the Disclosure Package and the Prospectus, except as otherwise stated therein, there shall not have been (i) any change or decrease specified in the letter or letters referred to in paragraph (e) of this Section 6 or (ii) any change, or any development involving a prospective change, in or affecting the condition (financial or otherwise), earnings, business or properties of the Company and its subsidiaries taken as a whole, whether or not arising from transactions in the ordinary course of business, except as set forth in or contemplated in the Disclosure Package (exclusive of any amendment or supplement thereto) the effect of which, in any case referred to in clause (i) or (ii) above, is, in the sole judgment of the Manager, so material and adverse as to make it impractical or inadvisable to proceed with the offering or delivery of the Shares as contemplated by the Registration Statement (exclusive of any amendment thereof), the Disclosure Package and the Prospectus (exclusive of any amendment or supplement thereto). (h) The Company shall have paid the required Commission filing fees relating to the Shares within the time period required by Rule 456(b)(1)(i) of the Securities Act without regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the Securities Act and, if applicable, shall have updated the “Calculation of Registration Fee” table in accordance with Rule 456(b)(1)(ii) either in a post-effective amendment to the Registration Statement or on the cover page of a prospectus filed pursuant to Rule 424(b). (i) FINRA shall not have raised any objection with respect to the fairness and reasonableness of the terms and arrangements under this Agreement. (j) The Shares shall have been listed and admitted and authorized for trading on the NYSE, and satisfactory evidence of such actions shall have been provided to the Manager, to the extent this Agreement and the transactions contemplated hereunder require the filing of a Supplemental Listing Application with the NYSE. (k) Prior to each Settlement Date and Time of Delivery, as applicable, the Company shall have furnished to the Manager such further information, certificates and documents as the Manager may reasonably request. If any of the conditions specified in this Section 6 shall not have been fulfilled when and as provided in this Agreement, or if any of the opinions and certificates mentioned above or elsewhere in this Agreement shall not be reasonably satisfactory in form and substance to the Manager and counsel for the Manager, this Agreement and all obligations of the Manager hereunder may be canceled at, or at any time prior to, any Settlement Date or Time of Delivery, as applicable, by the Manager. Notice of such cancellation shall be given to the Company in writing or by telephone or facsimile confirmed in writing. The documents required to be delivered by this Section 6 shall be delivered at the office of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel for the Manager, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ on each such date as provided in this Agreement.

Appears in 1 contract

Sources: Equity Distribution Agreement (Triumph Group Inc)

Common use of Conditions to the Obligations of the Manager Clause in Contracts